ARKANSAS SUPREME COURT RULES SODOMY LAW INAPPLICABLE TO PRIVATE, CONSENSUAL...

Lesbian/Gay Law Notes
Summer 2002
Summer 2002
107
ARKANSAS SUPREME COURT RULES SODOMY LAW INAPPLICABLE TO PRIVATE, CONSENSUAL SEX
In a belated Independence Day present to lesbian and gay residents of Arkansas, that state’s
Supreme Court ruled on July 5 in Jegley v.
Picado, 2002 WL 1453664, that the state’s
same-sex sodomy law was unconstitutional as
applied to private behavior by consenting
adults. The court’s decision invalidated the law
based on two provisions of the state constitution, one protecting individual privacy and the
other guaranteeing equal protection of the laws.
The ruling came in a lawsuit filed years ago
by Lambda Legal Defense and Education Fund
on behalf of seven gay residents of the state,
none of whom had ever actually been prosecuted under the sodomy law but each of whom
was willing to declare publicly that they have
engaged in illegal sexual activity in private with
consenting adult partners and would continue
to do so. On that basis, they claimed that they
were in danger of prosecution under an invalid
criminal statute, and subject to stigmatization
and discrimination as a result.
Several years of the lawsuit were consumed
by argument over whether the plaintiffs had
standing to seek a declaration that the law was
unconstitutional. The state argued that because
there was no record that anybody had been
prosecuted under the statute for consensual sex
in private since its enactment in 1977 (when it
replaced a prior sodomy law that applied to heterosexuals and homosexuals alike and had
much more severe penalties), the plaintiffs in
this case had no reasonable basis for fearing
prosecution.
In rejecting that argument in her opinion for
the state supreme court, Justice Annabelle
Clinton Imber accepted the plaintiffs’ argument that as long as the law remained on the
books, they were stigmatized as criminals and
could suffer a variety of negative consequences, including discrimination by the state
in such areas as employment and parental
rights. She wrote, “In the past decade, three different attempts to repeal the statute have failed,
sending a signal to prosecutors of the statute’s
continuing vitality. The State has refused to disavow enforcement of the statute and is, in fact,
vigorously defending the legality of the statute
in the present action. In addition, albeit for
public or nonconsensual conduct, there have
been prosecutions under Arkansas’s sodomy
statute as recently as 1988. In addition, our
sodomy statute has been used outside the
criminal context in ways harmful to those who
engage in same-sex conduct prohibited by the
statute. Clearly this statute is not moribund,
and the State has not foresworn enforcement of
it.”
In a concurring opinion, Justice Robert L.
Brown drove home this point even more
strongly, writing, “I agree completely that the
State has placed the plaintiffs in a catch–22
situation. According to the State, they are
dubbed criminals but have no recourse in the
courts to correct this status. The State’s counsel
at oral argument contended that the sodomy
statute is a ‘dead letter’ and that no prosecutor
currently enforces it. Nor has it been enforced
for decades, counsel adds. In the same breath,
she urges that the statute must be kept on the
books and that the plaintiffs should be prevented from challenging it, even while the statute makes them criminals. It is indisputable
that the sodomy statute hangs like a sword of
Damocles over the heads of the plaintiffs, ready
to fall at any moment. The idea of keeping a
criminal statute on the books which no one
wants to enforce is perverse in itself. This
brands the plaintiffs with a scarlet letter that the
State contends they should have no chance to
contest in the courts of this State. The State’s
position comes perilously close to complete inconsistency and smacks of a no-lose proposition for the government and a no-win situation
for the plaintiffs. Other sister states have refused to countenance this argument and have
permitted attacks on their sodomy statutes by
plaintiffs who admit to the conduct but who
have not been arrested.”
Justice Brown’s reference to “other sister
states” was quite significant, since when it
came to evaluating the constitutionality of the
sodomy law on the merits, the court repeatedly
referred to and quoted from decisions by appellate courts in Montana, Kentucky, Tennessee,
and Georgia, all relatively recently invalidating
sodomy laws by reference to state constitutional
privacy arguments, and in some cases equal
protection arguments as well. Brown, more than
Imber, noted a developing trend in state courts
to find criminal treatment of private sexual expression invalid, commenting, “The Georgia
Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NY, NY 10013, 212–431–2156, fax 431–1804; e-mail: [email protected] or
[email protected]
Contributing Writers: Fred A. Bernstein, Esq., New York City; Ian Chesir-Teran, Esq., New York City; Alan J. Jacobs, Esq., New York City; Steven Kolodny, Esq.,
New York City; Todd V. Lamb, Esq., New York City; Mark Major, Esq., New Jersey; Sharon McGowan, Esq., Cambridge, MA; Tara Scavo, Student, New York Law
School ‘03; Daniel R Schaffer, New York City; Robert Wintemute, Esq., King’s College, London, England.
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Summer 2002
reversal is symptomatic of the national sea
change in attitude towards statutes such as
these.”
Justice Imber strongly asserted the unconstitutionality of the statute, broadly proclaiming
the right of Arkansas citizens to protection from
government interference with their privacy. After reviewing constitutional text, various state
statutes, rules and court decisions, she wrote,
“In considering our constitution together with
the statutes, rules, and case law mentioned
above, it is clear to this court that Arkansas has
a rich and compelling tradition of protecting individual privacy and that a fundamental right to
privacy is implicit in the Arkansas Constitution.… [We] hold that the fundamental right to
privacy implicit in our law protects all private,
consensual, noncommercial acts of sexual intimacy between adults. Because Ark. Code Ann.
secs. 5–14–122 burdens certain sexual conduct between members of the same sex, we find
that it infringes upon the fundamental right to
privacy guaranteed to the citizens of Arkansas.”
Since the right to privacy was found to be
fundamental, any statute that burdens it is subject to strict scrutiny, under which it could only
be upheld if the government had a compelling
justification for it. Here, the court found that the
state actually had provided no justification for
the invasion of privacy at all. “According to the
circuit court’s order in this case, appellant concedes that the State can offer no compelling
state interest sufficient to justify the sodomy
statute. Therefore, Arkansas’s sodomy statute
at Ark. Code Ann. sec. 5–14–122 is unconstitutional as applied to private, consensual, noncommercial, same-sex sodomy.”
The court could have stopped at this point,
but instead discussed the alternative ground for
attacking the statute: equal protection. The
challengers argued that by making it criminal
for gay people to engage in conduct which was
freely allowed to heterosexuals, the state had
discriminated on the basis of sex and sexual
orientation. If this was found to be sex discrimination, under Arkansas precedents there would
be a heightened level of judicial review. The
correct standard of review for sexual orientation
discrimination was yet to be established by Arkansas’s highest court.
In this case, the court found that there was a
valid claim of sex discrimination, but proceeded to analyze the case by the least demanding standard of judicial review, assuming
that there would be no heightened review for a
claim of sexual orientation discrimination, and
found the law wanting even under that most
permissive standard.
Justice Imber wrote, “[The state] contends
that the prohibitions of the statute are justified
108
by the State’s legitimate interest in protecting
public morality. Appellees counter that longstanding, negative views about a group of people do not amount to proper justification for differential treatment.… We agree that the police
power may not be used to enforce a majority
morality on persons whose conduct does not
harm others. The Arkansas Equal Rights
Amendment serves to protect minorities at the
hands of majorities.… [The] State has a clear
and proper role to protect the public from offensive displays of sexual behavior, to protect people from forcible sexual contact, and to protect
minors from sexual abuse by adults. However,
criminal statutes, including those proscribing
indecent exposure, rape, statutory rape, and the
like, are in existence to protect the public from
precisely such harms.”
Justice Imber continued that the state “has
not offered sufficient reasoning to show that notions of a public morality justify the prohibition
of consensual, private intimate behavior between persons of the same sex in the name of
the public interest. There is no contention that
same-sex sodomy implicates the public health
or welfare, the efficient administration of government, the economy, the citizenry, or the promotion of the family unit. We have consistently
Summer 2002
held that legislation must bear a real or substantial relationship to the protection of public
health, safety and welfare, in order that personal rights and property rights not be subjected to arbitrary or oppressive, rather than
reasonable, invasion.” Thus, the statute was
unconstitutional on equal protection grounds.
Justice Brown’s concurrence focused on emphasizing the spatial privacy aspect of the case
— that the plaintiffs were arguing for the right
to engage in sexual activity with their chosen
partners in private — and pointed out that a
prior opinion of the court upholding the constitutionality of the previous sodomy law concerned a prosecution for engaging in sexual activity in a parked car, which he characterized as
“public activity.”
There was a dissenting opinion by two members of the court, but it was entirely concerned
with the issue of the plaintiffs’ standing to bring
the case. These justices argued that as nobody
had been prosecuted recently under the law for
consensual private activity, there was no real
threat of prosecution against the plaintiffs.
They argued that the discrimination plaintiffs
might encounter as gay people was more likely
due to social attitudes than to the continued existence of the sodomy law, and thus could not
Lesbian/Gay Law Notes
serve as a basis for giving them the kind of personal stake necessary to get a declaration of the
law’s unconstitutionality.
One difference between the opinion for the
court and the concurrence by Justice Brown
had to do with the final outcome of the case. For
a majority of the court, the correct result was to
declare that the sodomy law was unconstitutional as applied to adult, consensual private
sex. Justice Brown pointed out that there are
other statutes to take care of non-consensual or
public sex cases, and therefore no need to keep
the statute on the books at all.
Either way, with Arkansas’s criminal sodomy
law essentially rendered invalid, there remain
only a handful of states in which statutes specifically target gay people for criminal prosecution. In one of those, Texas, a cowardly state supreme court has refused to step in and reverse a
retrograde court of appeals decision upholding
the same-sex sodomy law on morality grounds.
Perhaps this decision from neighboring Arkansas will help the Texas legislature see the wisdom of repealing the sodomy law, as the Arizona
legislature recently did in response to privacy
arguments. A slightly larger number of states
still have sodomy laws that do not distinguish
between same-sex and opposite-sex conduct.
A.S.L.
LESBIAN/GAY LEGAL NEWS
Arizona Appeals Court Rules Out Joint Custody
for Lesbian Moms; Suggests Visitation Order
Instead
The Court of Appeals of Arizona has ruled that a
trial court abused its discretion when it
awarded two lesbians, who separated after living together as domestic partners, joint custody
of their daughter. Nielson v. Thomas, 2002 WL
1379186 (June 27). The panel unanimously
ruled that Arizona’s statutory framework does
not permit two people of the same gender to
have custody of a child, if only one of the two
parents is the “legal” (i.e., biological or adoptive) parent of the child, even if both parents
raised the child together.
While Nielson and Thomas were living together in a committed relationship, Thomas
adopted her own sister’s newborn daughter.
Nielson and Thomas then raised the child together. It was undisputed, and the court found,
that Nielson was “in loco parentis” to the child.
When the child was one year old, the couple
separated and agreed to seek joint custody of
the child. In 1988, the trial court entered an order awarding both women joint custody, with
Thomas having primary physical custody. Thomas, who had agreed to this arrangement, did
not appeal the order.
In 1999, Thomas was hospitalized for the
seventh time since 1997 for mental health and
drug-related issues. Nielson filed a petition for
temporary and permanent custody, which Thomas opposed. The trail court issued an order
awarding temporary visitation to Nielson and
supervised visitation for Thomas. After a hearing in December 2000, and after Thomas had
made a personal recovery (including clean
drug tests and counseling), the court directed
that joint custody resume. The court designated
Nielson as the final decision maker on medical,
educational and religious issues concerning
the child, and awarded costs and attorney’s fees
to Nielson. Thomas appealed, arguing that the
trial court lacked subject matter jurisdiction
under Arizona law to issue any of the custody
orders .
Writing for the appellate panel, Judge Noyes
ruled that the trial court had jurisdiction to rule
on Nielson’s petition for custody, which resulted in the second and third court orders, under A.R.S. 25–415(A)(4)(b). This subsection
applies to custody proceedings commenced by
a “non-legal parent” if “the child’s legal parents are not married to each other at the time the
petition is filed.” Thomas argued that this subsection did not apply, since the child had only
one legal parent, Thomas. (The court’s opinion
does not discuss the child’s biological father at
all; presumably, the child was conceived
through an unknown sperm donor, or a known
donor had relinquished parental rights when
Thomas adopted the child.) The court rejected
this argument: “To interpret the statute as Tho-
mas argues that it should be interpreted would
mean that non-legal parents could initiate custody proceedings if the child has a single legal
parent as a result of death, separation, or divorce, but could not do so if the child has a single legal parent as a result of adoption. We find
no good reason to so arbitrarily remove adopted
children from the protection of [the] statute.”
On the substantive issue of custody, the court
observed that Arizona’s statutes do not explicitly permit joint custody between a “legal” parent and a non-parent. Instead, there is a presumption that it is in the best interests of a child
to award custody to a legal parent, which can be
overcome by the non-legal parent though “clear
and convincing” evidence that granting custody of the child to the legal parent would not be
in the child’s best interests. The court went on
to note, however, that the court must make an
“either-or decision”: “Either it is in the child’s
best interest for a legal parent to have custody
or it is not. The court cannot find that it is in the
child’s best interest for a legal parent to have
custody and that it is also in the child’s best interest for a non-legal parent to have custody,”
Judge Noyes explained.
The appellate court vacated the two orders
emanating from Nielson’s petition, and appeared to recognize the difficult position in
which it had placed the trial court. Judge Noyes
explained, “We recognize that the trial court
made a great effort to decide this case in accor-
Lesbian/Gay Law Notes
dance with the best interests of the child, and
we also believe that such an effort need not be
frustrated by a statute that requires the court to
award custody to only one of the parties. The
court can award reasonable visitation rights to
the other party, and the court has considerable
discretion in shaping the contours of its custody
and visitation orders.”
Jayme Thomas was represented by Nancy A.
Stewart. Lisa Nielson was represented by Bette
Adelman and Teresa Foster. Ian Chesir-Teran
Ohio Appeals Court Approves Change of Custody
Away From Lesbian Mom
A unanimous court of appeals panel has approved a trial court’s decision to switch custody
of two young boys from their lesbian mother to
their father, finding changed circumstances in
the mother’s decision to convert to Islam and
live with another woman who is a convicted sex
offender. In re Marriage of Faulhaber, 2002 WL
1401066 (Ohio App., 11th Dist., June 28,
2002) (not reported in N.E.2d).
The parties were married in 1991 and had
two sons, in 1992 and 1995. In 1999, their marriage was dissolved and the court gave Maria
residential and legal custody, awarding Allan
the standard visitation order. However, even before the divorce, Maria had met Pia Carrington,
now known as Djata Samad, through an internet
chatroom, and ultimately Samad, who had become a Muslim, came to live with Maria and the
boys. Maria also converted to Islam and
changed her name. Samad had done prison
time for various offenses, including a sexual offense involving the assault of someone with
whom she was previously living.
Upon learning about Samad’s presence in
the household, Allan brought an action to
change custody, and was awarded first temporary and then permanent custody of the boys.
Maria was granted visitation, with the restriction that another adult always be present when
Samad was around. The evidence on which the
court relied was a report by a county investigator who supported the change of custody, finding that the children were “far more comfortable” at Allan’s home, and that the atmosphere
in Maria’s home had created “confusion, uncertainty and fear” in the children’s lives. Also,
the guardian ad litem appointed by the court to
represent the children’s interests concurred in
this recommendation, stating concern about the
“cumulative changes” in Maria’s life and about
Samad’s “criminal background.”
The only dissent came from the courtappointed psychologist, who recommended
that the children remain with Maria “on the basis that he did not perceive a change in circumstances sufficient to warrant a change of custody.” But the court discounted his testimony
because he “was not informed… of Samad’s
criminal history.”
Summer 2002
The court of appeal agreed with the trial
court’s decision to switch custody, finding no
abuse of discretion based on this record. The
court rejected Maria’s argument that the decision reflected unconstitutional discrimination
on the basis of her sexual orientation. Without
getting in to any discussion about the level of
judicial review for a sexual orientation discrimination claim, Judge Robert Nader observed that Ohio precedents support taking into
account the sexual orientation of a parent in
terms of the impact it may have on minor children, but asserted that in this case “there is no
evidence that the trial court considered the issue of sexual orientation to be determinative.”
For all the record shows, the trial court was concerned with Samad’s past criminal record, not
her gender or the sexual nature of her relationship with Maria, in deciding that the children
would be better of with Allan. “The court determined that appellant’s sudden change in sexual
orientation and decision to co-habitate with a
convicted sex offender had contributed to appellant becoming ‘systematically isolated from
the outside world,’ including her own parents.
The court further determined that appellant’s
isolation was adversely affecting Ryan and
Matthew. Such a determination is not a violation of appellant’s constitutional rights.”
Finding that the trial court’s decision was not
against the weight of the evidence, Nader articulated the bottom line in this case: “The fact
remains that appellant has undergone many
changes in her life and is currently living with a
convicted sex offender. Therefore, weighing the
evidence and all reasonable inferences, we
cannot conclude that the trial court clearly lost
its way or created such a manifest miscarriage
of justice that the judgment must be reversed.”
A.S.L.
Battle Continues Over Mass. Marriage
Amendment
Although the Massachusetts Supreme Judicial
Court rejected constitutional objections to a
proposed state constitutional amendment that
would ban same-sex marriages, Albano v. Attorney General, 2002 WL 1286977 (June 13,
2002), legislative maneuvering may keep the
measure off the ballot, according to press reports from the Bay State.
The state’s legislature received a petition
with sufficient valid signatures, proposing to
add to the state constitution a provision stating
that only a marriage between one man and one
woman would be valid and recognized in Massachusetts, and further providing that same-sex
couples would be ineligible to receive any of
the benefits or incidents exclusive to marriage
from the state or any of its agencies, departments, authorities, commissions, officials, and
political subdivisions. Opponents fear that enactment of this measure would go beyond ban-
109
ning same-sex marriages to curtailing the ability of state officials either voluntarily, or by
court order, to extend recognition to same-sex
couples in any context. (For example, under
Massachusetts high court rulings, same-sex
couples may jointly adopt children; if enacted,
would the proposed amendment overrule that
decision?)
Filing suit on behalf of a group of Massachusetts same-sex couples, Gay & Lesbian Advocates & Defenders challenged the proposal on
two grounds: that it violates a ban on referenda
relating to the powers of the courts, and that it
improperly contains subject matter that is not
related or mutually dependent, thus presenting
multiple policy questions to voters in one yesor-no vote.
The high court unanimously rejected both of
these arguments, in a short opinion by Justice
Cowin. As to the first, Cowin observed that past
cases have established that the only referenda
that would run afoul of the “powers of the
courts” limitation are those that would literally
strip the courts of jurisdiction to hear particular
kinds of cases, or expressly deprive the courts
of particular remedial powers. Cowin asserted
that a measure seeking to change substantive
law would not be such a measure.
Turning to the more substantive objection,
Cowin refused to indulge the argument that the
proposal improperly combines unrelated subjects. The plaintiffs pointed out that the measure “affects same-sex couples in many different
contexts," and listed a variety of statutes relating to the rights and responsibilities of marriage, including those relating to inheritance,
taxes, medical decisions, and wrongful death
claims. Cowin responded that “an initiative petition can address more than one subject if
those subjects are related. Subjects are related
‘[i]f … one can identify a common purpose to
which each subject of an initiative petition can
reasonably be said to be germane.’ Here, the
entire petition relates to the common purpose of
restricting the benefits and incidents of marriage to opposite-sex couples. Although the
plaintiffs list many statutes that may be affected
should the measure be adopted, each statute affected creates a benefit or responsibility that
arises from married status. A measure does not
fail the relatedness requirement just because it
affects more than one statute, as long as the provisions of the petition are related by a common
purpose.”
Thus, the court concluded that the Attorney
General had properly certified the proposal as
complying with constitutional requirements,
thus putting the ball in the legislature’s court.
Under Massachusetts law, in order to be placed
on the ballot, a referendum must attain an affirmative vote of 25 percent of the House and
Senate members. Senate President Thomas F.
Birmingham, hoping to block the referendum,
has maneuvered to keep the matter from com-
110
ing to a vote. Claiming that other pending proposed constitutional changes were occupying
legislators, who would need more time to consider the merits of the marriage proposal, Birmingham managed to put off legislative consideration until later in July, according to a June
20 report in the Boston Globe. A.S.L.
Lambda Files Marriage Suit in New Jersey
Opening a new front in the same-sex marriage
campaign, Lambda Legal Defense & Education Fund filed a complaint in the New Jersey
Superior Court, Hudson County Chancery Division, on June 26, seeking injunctive relief
against state officials who refused to provide
marriage license applications to the seven
plaintiff couples during the previous weeks.
Lewis v. Harris. This is the first case filed by
Lambda, the nation’s largest and oldest lesbian
and gay rights public interest law firm, seeking
same-sex marriage. (Lambda entered the Hawaii case, which had originally been filed by an
individual attorney, at a later stage in the litigation. With the exception of the Vermont and
Massachusetts cases, which were filed by Gay
and Lesbian Advocates and Defenders, a
Boston-based public interest firm, all other
same-sex marriage cases to date have been
filed by individuals on their own behalf using
private counsel.)
Lambda’s complaint focuses on Article I,
paragraph 1 of the New Jersey Constitution of
1947, which provides: “All persons are by nature free and independent, and have certain
natural and unalienable rights, among which
are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting
property, and of pursuing and obtaining safety
and happiness.” This provision had been construed as a guarantee of due process, equal protection, and a right of privacy. In Count 1 of the
Complaint, Lambda alleges that governmental
interference with the right of same-sex couples
to marry is a denial of the right to privacy, characterized as a “core personal choice.” In Count
2, Lambda alleges a denial of equal protection.
Lambda attorneys listed as counsel on the
case are David S. Buckel, Adam Aronson, and
Legal Director Ruth E. Harlow. New Jersey
counsel are Lawrence S. Lustberg and Risa E.
Kaufman of Gibbons, Del Deo, Dolan, Griffinger & Vecchione. The filing of the complaint
drew national media attention, including arguments by proponents of a federal constitutional
amendment to ban same-sex marriage that this
lawsuit reinforces the need for such an amendment. A.S.L.
Supreme Court Opts for More Time to Sue on
Hostile Environment Claims
In National Railroad Passenger Corp. v. Morgan, 122 S. Ct. 2061 (June 10, 2002), the Su-
Summer 2002
preme Court clarified how lower courts should
apply the statute of limitations in various types
of employment discrimination cases. In order to
recover damages for discrete acts of discrimination by an employer, an aggrieved employee
must file charges within the 180– or 300–day
limitations period specified by Title VII. When
an employee alleges a hostile work environment, however, the employee is entitled to seek
damages for the entire period that the hostile
work environment existed so long as one act
contributing to the hostile environment occurred within the relevant time period.
Abner Morgan sued Amtrak for both discrete
acts of racial discrimination and for perpetuating a racially hostile work environment. Morgan filed a complaint with the EEOC in February 1995, and the agency issued a right to sue
letter in July 1996. Morgan filed his lawsuit
against Amtrak in a California federal court
three months later. Morgan’s complaint contained a litany of allegedly discriminatory acts,
some of which had occurred within 300 days of
the time that he filed his charge with the EEOC,
but many of which had taken place earlier.
Amtrak filed a motion for summary judgment, asking the district court to throw out any
claims stemming from actions occurring outside of this 300–day period. The district court
granted the motion, and Morgan appealed. The
Ninth Circuit Court of Appeals reversed the
district court, ruling that, under the “continuing violations doctrine,” Morgan could seek
damages for the entire period of discrimination
so long as the incidents falling outside of the
time period represented part of an “ongoing unlawful employment practice.”
When a plaintiff seeks to hold an employer
liable for an “unlawful employment practice,”
he must file a complaint with the EEOC within
180 days of when the practice occurred. If the
plaintiff lives in a state that has an agency
authorized to grant relief for such complaints,
Title VII allows the plaintiff 300 days to file his
complaint with the EEOC, a federal agency, in
order to give the plaintiff an opportunity to resolve the dispute through state processes. As a
result, the pivotal question facing the Court in
Morgan was “what constitutes an ‘unlawful employment practice’ and when has that practice
occurred,” so that one can determine when the
180– or 300–day clock begins to run. The 9th
Circuit had ruled that a series of discrete discriminatory acts could qualify as one “unlawful
employment practice,” meaning that so long as
one act occurred within the statutory time period, the plaintiff could seek to recover for the
entire period during which the “practice” took
place.
Interestingly, Justice Thomas parted company with his conservative colleagues to write
the opinion for the Court, which affirmed in part
and reversed in part the 9th Circuit’s decision.
Rejecting the lower court’s analysis, Justice
Lesbian/Gay Law Notes
Thomas observed that on numerous previous
occasions the Supreme Court has reiterated
that “the term ‘practice’ [can] apply to a discrete act or single ‘occurrence,’ even when it
has a connection to other acts.” Accordingly, all
nine Justices agreed that, when a plaintiff seeks
to hold an employer liable for a specific discriminatory act, the clock begins to run at the
moment the act occurs. “Each discrete discriminatory act starts a new clock for filing
charges alleging that act,” the Court stated. A
plaintiff may seek to recover for a number of
discriminatory incidents, but each one must
fall within the statutory time period. A plaintiff
may nevertheless include information about
discriminatory acts falling outside of that period to explain the context within which the
timely acts occurred. He may not, however,
seek damages for actions that occurred outside
the statutory period.
Hostile work environment claims, on the
other hand, require a different analysis, as they
are “different in kind from discrete acts” because “[t]heir very nature involves repeated
conduct.” These claims are based on the cumulative effect of individual acts, no one of which
may be actionable when viewed in isolation. As
a result, Justice Thomas wrote, “[i]t does not
matter, for purposes of [Title VII,] that some of
the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time
period of the hostile environment may be considered by a court for the purposes of determining liability.”
A plaintiff may not, however, delay for an unreasonable amount of time before filing a hostile work environment claim. The Court made
clear that a plaintiff may waive his rights if he
does not timely assert them. Likewise, an employer may assert defenses of estoppel and equitable tolling “when equity so requires.” Justice O’Connor wrote separately, joined by Chief
Justice Rehnquist and Justices Scalia and Kennedy. She agreed with the majority’s analysis
regarding discrete acts of discrimination, and
insisted that there was no reason to apply a different rule when handling hostile work environment claims. “Although a hostile environment
claim is, by its nature, a general atmosphere of
discrimination not completely reducible to particular discriminatory acts, each day the worker
is exposed to the hostile environment may still
be treated as a separate ‘occurrence,’ and
claims based on some of those occurrences forfeited.” Justice O’Connor also wrote a paragraph, joined only by Justice Breyer, in which
she insisted that a “discovery” rule should be
used to determine when the statutory clock begins to run for claims regarding discrete discriminatory actions. Under this rule, a plaintiff
must file his claim within 180 or 300 days after
he had, or should have had, notice of the dis-
Lesbian/Gay Law Notes
Summer 2002
criminatory act. She left for another day, however, the question of how this discovery rule
should be applied in specific cases. Justice
Thomas, on the other hand, specifically
avoided discussing the discovery rule in the
majority opinion, stating in two separate footnotes, one dealing with discrete claims of discriminatory conduct and the other regarding
hostile environment claims, that Morgan’s case
“presents no occasion to resolve that issue.”
Although this case involved racial discrimination, the Court’s holding will apply with
equal force to sex discrimination cases, which
is good news for LGBT advocates. Although Title VII does not (yet) include sexual orientation
as a protected category, many LGBT plaintiffs
have nonetheless been able to use this statute to
recover damages against employers who discriminated against them because they did not
conform to traditional gender stereotypes (i.e.,
butch women and effeminate men). If Congress
ever amends Title VII to include sexual orientation, or if Congress passes the Employment
Non-Discrimination Act (ENDA), the principles announced in Morgan might be applicable
to lawsuits involving sexual orientation discrimination as well. Sharon McGowan
Observing that DOMA, by its terms, is limited
to withdrawing federal recognition from samesex marriages that have been recognized under
a state’s marriage law, the court noted that
Mueller and Bates have not obtained a staterecognized marriage in Illinois, their domicile,
and thus DOMA is irrelevant to their case. Having disposed of Mueller’s attempt to get them to
address DOMA, they apparently decided not to
address anything, since there is no substantive
discussion in this short, unpublished memorandum of the merits of his equal protection
claim.
For the court, the case boiled down to the lack
of any dispute about the amount due under
Mueller’s recalculated 1996 income tax, so the
court affirmed the Tax Court’s ruling ordering
Mueller to pay up, and concluded with a little
lecture to him: “We remind Mr. Mueller once
again that despite his personal dissatisfaction
with the current tax laws, he does not have license to ignore them. We also warn Mr. Mueller
that if he continues to file frivolous tax appeals,
he faces the possibility of sanctions.” A.S.L.
7th Circuit Rebuffs Gay Tax Rebel Again
In a unanimous opinion issued on June 14,
Maryland’s highest court upheld the validity of
Montgomery County’s ordinance that provides
domestic partnership benefits for the same-sex
partners of county employees. Tyma v. Montgomery County, (Md. Ct. App.). The opinion by
Chief Justice Bell cites and relies on numerous
decisions by the courts of other states upholding similar benefits plans. Surprisingly, the taxpayer plaintiffs did not argue that the plan
might violate the Equal Protection Clause by
failing to provide benefits for same-sex domestic partners.
The Montgomery County Council and the
County Executive enacted the Employee Benefits Equity Act late in 1999. The act extends
benefits, such as health, leave, and survivor
benefits, to the same-sex domestic partners of
County employees on the same basis that those
benefits are extended to legal spouses. The
Council cited two policy bases for the Act: the
County’s “longstanding policy, in law and practice, against employment discrimination based
on sexual orientation,” and a stated belief that
“it is unfair to treat employees differently based
solely on whether the employee’s partner is legally recognized as a spouse.” The statement of
findings indicated that many other employers
are providing such benefits, and that the
County had to do so in order to be competitive
in hiring qualified employees.
When these types of laws are passed, the
conservative legal foundations swing into action, recruiting some local citizens to be named
plaintiffs in a challenge to the validity of the local law. The resulting lawsuit usually turns on
For a second time, Robert Mueller unsuccessfully sought to win the sympathies of a U.S.
Court of Appeals, 7th Circuit, panel for his argument that the Internal Revenue Code violates
the constitution by denying him and his domestic partner, Todd Bates, the right to file jointly
and benefit from the standardized deduction for
married couples. Meuller v. Commissioner of Internal Revenue, 2002 WL 1401297 (unpublished disposition).
Last year, in Mueller v. Comm’r, No.
00–3587, 2001 WL 522388 (7th Cir., April 6,
2001), the court rejected Mueller’s attempt to
draw into question the constitutionality of the
Defense of Marriage Act, noting that he was disputing his taxes for the years 1985–1995, and
that the DOMA did not go into effect until after
it was enacted in the fall of 1996. That argument was not available to the court this year,
when Mueller’s 1996 return was at issue. Mueller and Bates both signed the return, checking
the joint filing status (although crossing out the
word ‘married’) and claiming a standardized
deduction provided for married filers. The IRS
then went after Mueller for an additional
$8,712, and the Tax Court rejected his arguments.
On the appeal, Mueller renewed his claim
that the failure to make joint filing status available to same-sex couples violates the constitution, and that to the extent a contrary result is
dictated by DOMA, then DOMA is unconstitutional. But the judges refused to be drawn into a
dispute about the constitutionality of DOMA.
Maryland High Court Upholds Montgomery
County Domestic Partnership Benefits
111
issues of state constitutional and statutory law,
most specifically on the degree of legislative
autonomy that the state grants to its political
subdivisions, on principles of state law preemption, and, perhaps most crucially on
whether there is a state law or regulation that on
its face restricts who may receive benefits flowing from public employment.
In Maryland, counties are authorized to establish a charter granting their legislative bodies broad jurisdiction to pass laws on matters
affecting public health and welfare, and local
governments are delegated broad authority to
establish their employee benefits policies.
There is no state law strictly defining who can
receive benefits through a link to public employment. The main distinction seems to be between truly local laws and laws on subjects having state-wide impact and significance. The
Court of Appeals easily agreed with the trial
court that the Act was merely an instance of a
local government body establishing its own employee benefit policies, had no extraterritorial
scope or ambition, and thus did not run afoul of
whatever restrictions are explicit or implicit in
the governing home rule laws respecting the
legislative competence of the county council.
Taking on the more serious issue of preemption, the court decisively rejected the plaintiffs’
argument that the domestic partnership act was
a wolf in sheep’s clothing an attempt to undermine the state’s statutory ban on same-sex marriage. “We agree with the Circuit Court that the
County had the authority, and clearly so, to enact the subject benefits legislation and that the
Act is a local law that does not infringe upon the
Legislature’s ability to regulate marriage on a
statewide basis,” wrote Chief Justice Bell.
“The Act at issue in this case does not, and does
not purport to, define or regulate marriage in
Maryland. Indeed, the Act itself includes the
purpose for which the County enacted it, setting
out the County’s specific findings that ‘many
private and public employers provide or plan to
provide benefits for the domestic partners of
their employees’ and that ‘[p]roviding domestic
partner benefits will significantly enhance the
County’s ability to recruit and retain highly
qualified employees and will promote employee loyalty and workplace diversity.’” The
court asserted that the County “must have the
power to regulate local employment and, as to
that, its employees.”
The court found that its own prior precedents
tended to support this view, and also observed
that in other jurisdictions, the courts had routinely upheld the validity of local domestic
partnership laws, except where there was a specific state benefits law with which the partners
law would specifically conflict. (Also, most the
decision rejecting benefit plans are older, while
the string of recent rulings in support of their
validity constitutes a clear trend.) “Nothing in
the Act purports to, or can be construed to, cre-
112
ate an alternate form of marriage, authorize
common law marriage or create any legal relationship,” Bell insisted. “Nor does the Act, by
its terms or implication, restrict, modify or later
any rights incident to a marriage recognized in
this State or give one domestic partner rights,
beyond the employment benefits enumerated,
against the other… As a matter of fact, therefore and in sum, the Act affects only the personnel policies of Montgomery County and does
not implicate the State’s interest in marriage or
affect the State’s ability to regulate marriage on
a statewide basis.”
The court also rejected a federal preemption
argument, based on provisions of the Act purporting to make same-sex partners eligible for
certain benefits that may be founded out of federal or state tax revenue. A.S.L.
Nebraska Supreme Court Revives Co-Parent
Custody Suit
The Nebraska Supreme Court unanimously reversed a trial court decision that had granted
summary judgment against a lesbian co-parent
who was seeking custody and visitation rights
on the basis of an out-of-state co-parent adoption order in Russell v. Bridgens, 264 Neb. 217
(June 28, 2002). However, the court’s ruling
was narrowly premised on the trial court’s incorrect allocation of proof burdens and did not
address important legal issues underlying the
case. These issues were addressed in detail by
a concurring opinion.
Serenna D. Russell and Joan C. Bridgens
were living together as partners in December
1997 when they jointly adopted a young boy,
who had been singly adopted the year before by
Bridgens. According to the 1997 adoption decree issued by a Pennsylvania Common Pleas
Court, “all requirements of the Acts of Assembly have been fulfilled and complied with.”
Subsequent to the adoption, the two women
were raising the child together and had moved
to Germany. However, in August 1999, Russell
and the child returned to the U.S., while Bridgens remained in Germany. On November 21,
2000, Russell, then living in Douglas County,
Nebraska, filed a petition to establish custody
and support for the child, drawing a crosspetition from Bridgens, who subsequently
moved for summary judgment.
Russell was apparently asserting a right to
seek sole custody as an adoptive parent of the
child. Bridgens argued in opposition that the
Pennsylvania adoption order was invalid, inasmuch as Pennsylvania appellate courts have
found that two unmarried persons of the same
sex may not jointly adopt a child, an issues that
is current only appeal to the Pennsylvania Supreme Court. The trial court, looking at these
Pennsylvania decisions, concluded that the
Common Pleas Court lacked jurisdiction to approve the adoption, since Bridgens had not
Summer 2002
given consent to termination of her parental
rights, which would be required in all but stepparent adoption cases, and thus granted summary judgment to Bridgens, who now has custody of the child.
The Supreme Court took Russell’s appeal directly, finding need for expedition in the case,
but Justice Stephan’s opinion for the court does
not provide for a speedy outcome. Stephan
found that Bridgens failed to carry her burden
of proving the Pennsylvania adoption invalid.
The only documentary evidence in the record
before the trial court is the facially valid Pennsylvania adoption order, which recites that all
laws have been complied with. If Bridgens
wants to challenge that adoption as an underlying basis for Russell’s standing to seek custody,
she will have to provide more documentary evidence. “There is no evidence in the record establishing that the necessary consents were not
included with the petition for adoption or that
Bridgens did not, in fact, relinquish her parental rights prior to the 1997 ‘coparent’ adoption,” wrote Stephan. Thus, no burden shifted
to Russell to show that the statutory requirements were met, and summary judgment was
improper.
Concurring, in an opinion that was also
joined by Justice Wright, Justice Gerrard argued that the Pennsylvania adoption, being facially valid and having recited within the order
that all statutory requirement were complied
with, should be entitled to full faith and credit
in a Nebraska court. Furthermore, Gerrard argued, Russell’s standing as an adoptive parent
might be irrelevant, because Nebraska has also
recognized an in loco parentis theory by which
somebody such as Russell could prove an actual parental relationship and thus gain standing to seek custody. As to this, Gerrard pointed
out that Russell had offered an affidavit concerning her relationship with the child, which
had been rejected as irrelevant by the trial
court. Gerrard found this ruling to be erroneous, since such evidence would be probative of
the in loco parentis argument.
Russell is represented by Susan Ann Koenig
and Angela Dunne Tiritilli, and John F. Eker III
represents Bridgens. Support Center for Child
Advocates and others filed an amicus brief, as
did the ACLU Foundation of Nebraska. A.S.L.
Ohio Appeals Court Endorses Emotional Distress
Claim for Anti-Gay Workplace Harassment, But
Rejects Sexual Orientation Discrimination Claim
Barry Tenney, an employee at GE since 1973,
alleges that he suffered several years of constant harassment from his supervisors and coworkers, and that GE endorsed and engaged in
the conduct. Among his accusations are that
fellow employees made outrageous comments
abut Tenney’s parents; told Tenney that he’s a
trouble-maker, a bad worker and a liar; made
Lesbian/Gay Law Notes
death threats; wrote graffiti on bathroom walls
saying that Tenney had AIDS; and other similar
conduct. Tenney claims that this conduct
caused him severe emotional distress and depression, making him unable to devote his full
attention to the job. Tenney v. General Elec. Co.,
2002 WL 1305990 (Ohio App. 11th Dist., June
14, 2002).
Tenney brought charges that his co-workers
interfered with his employment relationship;
that they and GE intentionally inflicted emotional distress; and that they discriminated
against him based on sexual orientation. The
defendants asked for and received summary
judgment for failure to state a claim upon which
relief could be granted, and the matter was appealed to the court of appeals, 11th District, for
which Judge Robert A. Nader wrote the opinion.
The Supreme Court of Ohio has held that intentional infliction of emotional distress may be
proved by showing: (1) that the defendant intended to cause the plaintiff serious distress,
(2) that the defendant’s conduct was extreme
and outrageous, and (3) that the defendant’s
conduct was the proximate cause of plaintiff’s
serious emotional distress. Phung v. Waste
Mgt., Inc., 71 Ohio St. 3d 408, 410, 644 N.E.2d
286 (1994). The Tenney court in found that, if
Tenney’s allegations can be substantiated, intentional infliction of emotional distress might
be provable. The lower court was reversed on
this count.
However, sexual orientation discrimination
is not illegal in Ohio. The absence of the words
“sexual orientation” in the Ohio civil rights
statute suggests that the legislature did not intend to make such discrimination illegal. The
Ohio Supreme Court has had the opportunity to
extend protections to gay people, according to
Judge Nader, but has not done so, although a
concurrence in Retterer v. Whirlpool Corp., 89
Ohio St. 3d 1215, 729 N.E.2d 760 (2000),
stated that “it is only a matter of time before the
question [of sexual orientation discrimination]
is properly before the court.” Under present
law, the Tenney court had to conclude that civil
rights statutes do not apply to sexual orientation
discrimination, and the court affirmed summary judgment on this issue for GE and
Tenney’s co-workers.
A dissenting judge, Judith A. Christley,
would extend civil rights protections to sexual
orientation based on the Ohio Supreme Court’s
holding that the civil rights statute protects
against all forms of sex discrimination in the
workplace, including discrimination consisting
of same-sex sexual harassment. Hampel v. Food
Ingredients Specialties, Inc., 89 Ohio St. 3d
169, 729 N.E.2d 726 (2000). She noted that
the discriminatory conduct need not be motivated by sexual desire to support an inference
of discrimination based on sex, citing Oncale v.
Sundowner Offshore Servs., Inc., 525 U.S. 75,
Lesbian/Gay Law Notes
80 (1998). Therefore, she would characterize
Tenney’s claim as one for same-sex sexual harassment, and extend protection to discrimination based on sexual orientation. Alan J. Jacobs
Harassed Florida Lesbian Suffers Dismissal of
Claims Against Employer and Coworkers
In a brief per curiam opinion, a Florida appeals
court affirmed the dismissal of a complaint filed
by a lesbian against her employer and coworkers for employment discrimination and intentional infliction of emotional distress. De La
Campa v. Grifols America, Inc., 2002 WL
1269560 (June 26, 2002).
Turning first to the discrimination claim, the
court agreed with the trial court’s determination that chapter 11A of the Miami-Dade
County Code, which prohibits discrimination
in employment on the basis of sexual orientation, provides no private cause of action for individuals to enforce those guarantees. Aindry
De La Campa contested this finding, insisting
that she had received a notice of a right to sue
from the Miami-Dade County Equal Opportunity Board that authorized her lawsuit pursuant
to section 11A–12 of the County Code. While
this section used to provide a private cause of
action, however, the court observed that this
provision had been eliminated by a more recent
amendment to the Code. Therefore, notwithstanding the language in the Board’s right to
sue letter, the court ruled that De La Campa was
not entitled to enforce her rights under the Code
through a private lawsuit.
With regard to her claim of intentional infliction of emotional distress, the court ruled that
the harassment allegedly suffered by De La
Campa did not rise to a level that would sustain
liability under Florida law. A plaintiff alleging
intentional infliction of emotional distress must
show that (1) the wrongdoer’s conduct was intentional or reckless; (2) the conduct was outrageous; (3) the conduct caused emotional distress; and (4) the emotional distress was severe.
The court explained that, with regard to prong
two, the Florida Supreme Court has ruled that,
for conduct to be considered “outrageous,” it
must be “so outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency.” The question of whether
prong two has been satisfied is a question of law
to be decided by the trial judge. The court then
observed that claims for intentional infliction of
emotional distress based solely on allegations
of verbal abuse have rarely survived this stringent test. In most cases, the verbal abuse must
be accompanied by some type of offensive
touching in order for liability to attach.
Turning then to De La Campa’s complaint,
the court noted that her allegations of sexual
harassment consisted primarily of derogatory
comments relating to homosexuality and other
abusive acts, such as excluding her from corpo-
Summer 2002
rate sponsored social functions because of her
sexual orientation. While commenting that De
La Campa’s allegations, if true, “constitute objectionable and offensive conduct,” the court
ruled that as a matter of law they “do not rise to
the level of outrageousness that is required by
law in a claim for intentional infliction of emotional distress.” Accordingly, the court threw
out the claims against De La Campa’s homophobic coworkers and the vicarious liability
claim lodged against her employer. Sharon
McGowan
4th Circuit Rejects Equal Protection Challenge to
Prison Housing Policy
A unanimous panel of the U.S. Court of Appeals
for the 4th Circuit ruled against an equal protection challenge to a prison’s alleged policy of
denying all requests by gay male prisoners to be
housed in a double-occupancy cell. v. Wyche,
2002 WL 1331775 (June 18, 2002). Using a
rational basis standard of review made more
deferential by the prison settings, the court concluded that prison authorities have sound reasons to house gay male prisoners in singleoccupancy cells. The plaintiff prisoner was represented by students from the University of Virginia’s Appellate Litigation Clinic.
Daniel Veney, a gay man, was incarcerated at
Riverside Regional Jail in Hopewell, Virginia.,
beginning in January, 2000. Throughout his
first year, he was kept in a single-occupancy
cell except for two days. He made several requests to be put in a double-occupancy cell, but
was denied. He filed a grievance, alleging he
was discriminated against because of his sex
and sexual orientation, arguing that the prison
apparently denies double-occupancy cells only
to gay male prisoners. His grievance was denied, and his subsequent federal lawsuit under
42 U.S.C. sec. 1983 was dismissed by District
Judge Jerome B. Friedman (E.D.Va.). On appeal, Veney continued to argue that there was
no good penological justification for denying
gay men an equal opportunity to live in
double-occupancy cells. The prison authorities
have consistently taken the position that they
have no such policy, but rather that there is a
general policy against changing cell assignments unless necessary for security or medical
reasons. However, for purposes of deciding
whether summary judgement should be
granted against Veney, the court treats his allegations as true.
Writing for the court, Judge Williams began
the analysis by finding that Veney had stated a
prima facie case of intentional discrimination.
However, this was just the beginning of the
analysis, the crucial question being the degree
of judicial scrutiny that would be given to a facially discriminatory prison housing policy.
Williams noted that the standard of review in an
equal protection case that does not involve ei-
113
ther a fundamental right or a suspect classification is the deferential rational basis test, tempered in prison cases by strong deference to
legitimate penological concerns that may underpin a challenged policy.
In this case, Williams found that no claim of
deprivation of a fundamental right was involved, since there is no constitutionally-based
fundamental right for prisoners to be in
double-occupancy cells. Perhaps more controversial is Williams’ contention that this case
did not involve a suspect classification. The basis for that assertion was simply a citation to Romer v. Evans, 517 U.S. 620 (1996), a case in
which the Supreme Court did not determine the
appropriate standard for reviewing a sexual orientation discrimination claim, but found that
the policy challenged in that case would not
even survive a rational basis review, and so
struck it down. In common with all too many
other lower federal courts, the 4th Circuit in
this case misconstrues this to be a holding that
sexual orientation discrimination claims are
not subject to heightened scrutiny. Neither the
Supreme Court in Romer nor the 4th Circuit in
this case devotes any attention or discussion to
the question whether a higher level scrutiny
should apply in sexual orientation cases, applying the traditional tests that were used in other
cases in the past.
Having decided to view the challenged policy from the perspective of the least intrusive
level of review, the court concluded that there
were many penological justifications for housing gay inmates in single-person cells. Perhaps
most significantly, the court relied on the hate
crime phenomenon, observing that documented hate crimes are significant in number,
signifying widespread hostility towards gay
people; thus prison authorities could argue that
any policy of housing gays separately from
straight prisoners would be justified as a safety
precaution, and housing them with other gay
prisoners might give rise to sexual activity that
violates prison rules (Horrors, we had no idea
that any gay sex was happening in prisons!!!).
Thus, it struck the court as rational to house
gays singly in order to avoid unnecessary confrontations with straight prisoners. Judge Williams also noted that housing gay male prisoners separately could be a prophylactic measure
to stem the spread of HIV/AIDS in prison populations.
As to the claimed sex discrimination, which
would be subjected to a somewhat higher level
of scrutiny, Williams opined that there were differences between gay men and lesbians, and
the ways they relate to other men and women,
that would justify having a policy regarding gay
men and following a different policy on housing
of lesbians. Straight men were seen as more
likely to be intolerant to gay prisoners than
straight women, so the safety issues (and possibly the medical issues) where seen as more
114
strongly weighing against segregated living
conditions for gay prisoners.
At the end, the court affirmed the district
court and affirmed the grant of summary judgment against the plaintiff. A.S.L.
3rd Circuit Invalidates Federal Requirement for
Library Internet Filters
A three-judge panel of the U.S. Court of Appeals for the 3rd Circuit unanimously ruled
May 31 that the Children’s Internet Protection
Act (CIPA) violates the 1st Amendment, and
permanently enjoined its enforcement. American Library Association, Inc. v. United States,
2002 WL 1126046. CIPA would have effectively barred access on public library computers to thousands of gay and lesbian-related
websites that would be automatically blocked
by commercial software intended to block access to sexually-related materials.
CIPA arose out of Congress’s concern that
federal money provided to public libraries
could be paying for adults to access pornography online at library internet terminals. The
idea of anybody accessing sexually-explicit
material at public expense is anathema to most
hypocritical publicly-sex-phobic politicians, so
Congress rushed to do something about it by
placing a draconian condition on federal financial assistance to public libraries. (Since public
libraries are drastically underfunded in this
country and many could not exist without the
pittance of federal assistance they receive, this
is a serious threat.) Under the law, libraries that
do not put filtering software into place to block
access to sexually-oriented materials on their
terminals would forfeit both their general federal financial assistance and also the specific
assistance (including cut-rate internet access)
that they are provided under programs enacted
during the Clinton Administration to assure
widespread public accessibility of the internet.
The problem, as Chief Circuit Judge Becker
pointed out in the opinion, is that no blocking
software now available is sensitive enough to
distinguish between obscene and non-obscene
sexually oriented material, or to distinguish between such material that is or is not harmful to
minors, another “banned” category under
CIPA. (Imagine, Congress wants library computer terminals rigged so that nobody can see
anything on them that a member of Congress
would consider to be harmful to a minor. Further
progress in the infantilizing of America…)
Blocking software is based on detecting words
and phrases, and is not sensitive to graphic images. This means that only if the text accompanying graphics contains key words and phrases
will it be detected by the software. In addition,
innocuous uses of the words and phrases could
result in blocking a particular website, even
though it was non-obscene and/or non-
Summer 2002
pornographic and contained nothing harmful to
children.
During a trial, the court heard testimony from
several library users about how materials
whose access is surely permissible under CIPA
would be blocked. “One teenager testified that
the Internet access in a public library was the
only venue in which she could obtain information important to her about her own sexuality.
Another library patron witness described using
the Internet to research breast cancer and reconstructive surgery for his mother who had
breast surgery. Even though some filtering programs contain exceptions for health and education, the exceptions do not solve the problem of
overblocking constitutionally protected material,” wrote Judge Becker.
The key issue for judicial review, of course,
was whether the government could sustain the
program by showing that it was a rational approach to dealing with the problem identified
by Congress, or whether CIPA is to be judge under the “strict scrutiny” standard because it is
clearly a content-based regulation of speech.
The court found that “strict scrutiny” is the appropriate standard in this case, rejecting the
government’s argument that putting on blocking software is similar to a library making a decision clearly not subject to strict scrutiny
about which books to buy or magazines to obtain via subscription. The court pointed out that
when buying a filtering program, the library
cannot be sure which particular websites will
be blocked and which will not be, as each software company has its own proprietary software
that can do no more than generally describe the
parameters of its operations. Thus, the library
can hardly be said to be exercising a conscious
decision of choice as to which websites it wants
to make available when it purchases such software.
The court found that not only would existing
blocking technologies block thousands of
constitutionally-protected websites that are unobjectionable under CIPA, but they would also
fail to block many websites of the type that Congress meant to include within the statutory prohibition, again because of the lack of sensitivity
to graphics in the screening software. Thus,
such software is not particularly affective in
achieving Congress’s purpose, and the statutory requirement fails to meet the test of strict
scrutiny, which is that the statutory requirement is narrowly tailored to achieve a compelling governmental interest without restricting
speech any more than is necessary for that purpose. The notion of “narrow tailoring” just does
not apply to existing blocking technologies.
The court decisively rejected the government’s argument that requiring the software
would be constitutional so long as it would
block out a significant amount of unprotected
material. Such an argument might suffice for a
statute being consider under rationality review,
Lesbian/Gay Law Notes
but not under strict scrutiny. The government is
likely to seek Supreme Court review on this
one.
The decision appears consistent with an earlier ruling by the U.S. District Court in Vermont,
using the 1st Amendment to strike down a similar internet-directed law passed a few years ago
by the Vermont state government. American
Booksellers Foundation for Free Expression v.
Dean, 2002 WL 1173669 (D. Vt. April 18,
2002). A.S.L.
California Appeals Court Rejects Challenge to Gay
Man’s Will
In a unanimous reversal of the trial court, the
California 4th District Court of Appeal rejected
a challenge to the last will and testament of
Ernest William Henault in Henault v.
Castagna, 2002 WL 1335602 (June 19, 2002)
(not officially published). The court disagreed
with the trial judge’s conclusion that the main
beneficiary under the will had exerted undue
influence on the testator in order to get his
house at Newport Beach.
Ernest William Henault, who went by the
name of “Eric,” was an HIV+ gay male hairdresser with severe liver disease due to his alcoholism. When his doctor told him in May
1996 that he was terminal and he should get his
affairs in order, he made a new will, leaving his
Newport Beach house and half of his other assets to William Castagna, a longtime friend and
his general handyman whose wife, Lori, had
been a hairdressing client of Eric since about
1972. (A prior will had made a significant bequest to a former boyfriend.) Of the remaining
half of the residuary estate, the will designated
10% to go to Jan Hension, a longtime female
friend, and 40% to go to Henault’s brother
James, who lived in Massachusetts and who
was the only one of Henault’s siblings with
whom he still maintained a somewhat cordial
relationship, mainly through James’s wife.
Eric made clear that he didn’t want the estate
going to his other siblings, including the following in his homemade will: “I Ernest W. Henault
being of sound mind leave any of the remaining
members of my immediate family the sum of
$1.00 (one dollar). Although I have always love
[sic] my family, I have been deeply hurt by the
way they have shunned me because I chose to
live an alternative lifestyle. I wish them well.”
William Castagna drove Eric to a Staples store
so he could use a computer to type up and print
out the document. He then drove Eric to
Castagna’s house for a picnic, during which
Henault executed the will in front of three witnesses (two non-beneficiaries and Lori
Castagna).
The day after the will was executed, Eric executed a durable power of attorney that Castagna
had prepared, naming Castagna his attorney in
fact, and shortly thereafter Eric also signed a
Lesbian/Gay Law Notes
health care power of attorney naming Castagna
to make decisions. Eric’s condition worsened,
and for the last several months of his life he saw
mainly the Castagnas and, during the last two
weeks, a live-in caretaker who he had hired. After Eric passed away, Castagna notified his siblings who decided to file suit seeking to have
the will excluded from probate.
In the case before Orange County Superior
Court James Jackman, a document surfaced
purporting to be a contract signed in 1993 by
Eric promising to leave his house to Castagna.
A neutral handwriting expert retained at the
court’s direction testified that Eric’s signature
on this contract was a forgery. The Henault siblings charged that Castagna and his wife, who
was also an informal caretaker for Eric, had exerted undue influence to get Eric to leave them
his real property. Judge Jackman, skeptical
about Castagna’s veracity in light of the possibly forged 1993 contract, found that Castagna
and his wife exerted undue influence on Eric,
and barred the will from probate. Jackman appointed one of Henault’s estranged brothers,
Emile, to be administrator of the estate, to be
divided equally between the siblings with nothing for the Castagnas. Castagna appealed.
Writing for the court of appeals, Judge Fybel
observed that where a will appears on its face to
be procedural and substantively sound, there is
a strong presumption in California in favor of
enforcement of the will, with the burden on contestants to prove invalidity. In this case, the
court of appeals found flaws with all of the trial
court’s findings. Most particularly, it found that
a long-time friendship does not create a fiduciary relationship. It was not until the signing of
the powers of attorney that a fiduciary relationship existed between Castagna and Henault.
The court found no signs of actual undue influence, and that the purpose set out in the will
seemed consistent with other testimony from
witnesses about Eric’s attitudes.
Although much goes unspoken in this opinion, it appears to this writer that the court was
weighing the correct way to go when the surviving relatives say that the beneficiary is just an
opportunistic golddigger, and yet the same
thing could be said about the siblings, in light of
the statement in Henault’s final will about their
attitude toward him as a gay man and his desire
not to leave them more than a token. Was Jackman’s ruling an expression of homophobia, or
just mistrust of the Castagnas taking advantage
of a situation to the detriment of Eric’s family?
One will probably never know the true story.
A.S.L.
Autoerotic Asphyxiation Deaths Produce Varied
Legal Results
Concluding that death or injury resulting from
autoerotic asphyxiation is accidental and not
intentional, the Court of Special Appeals of
Summer 2002
Maryland delivered an opinion illuminating the
conflicting answers given by prior courts in
Callaway v. Mamsi Life and Health Insurance
Company, 2002 WL 1377771 (June 26).
Autoerotic asphyxiation, hanging, or “hypoxyphilia,” the practice of denying oxygen or
blood to the brain “up to, but not including, loss
of consciousness” to increase the intensity of
sexual gratification, is defined as a mental disorder in the Sexual Masochism category by the
American Psychiatric Association’s Diagnostic
and Statistical Manual (4th ed.), which estimates that “two hypoxyphilia-caused deaths
per million are detected and reported each
year” in the U.S. (Suburban legend has it that
parents posthumously rearrange such scenes so
their teenagers’ deaths are reported as suicides.) As a heterosexual male, David Callaway
was typical of adult asphyxiators. Mamsi Life
and Health Insurance Company (Mamsi) denied payment of death benefits to Callaway’s
beneficiaries, arguing that he died from intentional self-injury rather than an accident.
The terms “accident” and “injury” were not
defined in the insurance contract. The parties
argued fatal drug-overdose and drunk driving
cases, from which the court found that an injury
caused by an intentional act is not precluded
from being caused by an accident if something
unforeseen produces the injury, and that this
question should be resolved from the insured’s
perspective. The court uncovered eight federal
(ERISA) cases and seven state law disputes
over life insurance proceeds from autoerotic asphyxiation deaths since 1976. In four of eight
federal cases and three of seven state cases
plaintiffs recovered. Writing for the court,
Judge Hollander reasoned that because death
is a statistically rare result, the fatality was not
reasonably foreseeable to the Insured, and that
the “fleeting hypoxia” intended to result from
such asphyxiation is not an “injury” within the
meaning of the insurance policy. The court
noted that acceptance of the insurer’s arguments could create a “slippery slope” on which
sky divers’, mountain climbers’, etc. accidental
death claims could be inappropriately denied.
Mark Major
Reverse Discrimination Claim Fails Against Gay
Men’s Health Crisis
Gay Men’s Health Crisis (GMHC), the world’s
first AIDS services organization, successfully
fended off a sexual orientation discrimination
charge by a heterosexual former employee in
Berner v. Gay Men’s Health Crisis, 2002 WL
1164422 (N.Y.App. Div., 1st Dept., June 4,
2002). A unanimous ruling by a four-judge
panel rejected Reina Berner’s allegation that
she was discharged as a coordinator of counseling services because she is not a lesbian.
The opinion affirmed a January 25 decision
by Manhattan Supreme Court Justice Jane
115
Solomon, who had granted GMHC’s motion to
dismiss the complaint filed under New York City’s sexual orientation discrimination law on
the somewhat peculiar ground that Berner had
“failed to adduce evidence sufficient to show,
prima facie, that her supervisor, the sole actor
accused of discrimination, knew that she is heterosexual.”
According to the terse appellate memorandum decision, Berner had no prior experience
dealing with persons with AIDS when she was
hired. For more than a year before her discharge, her supervisor had complained about
her performance, expressing concern about her
“lack of understanding of AIDS-related issues.” At the time of her discharge, Berner alleges that her supervisor said that she “lacked
passion for the job because ‘it wasn’t part of
[her] community.’” She seemed to believe that
this isolated comment was the smoking gun for
her case, arguing that the clear implication was
(as summarized by the court) that because “the
heterosexual community” does not suffer from
the AIDS epidemic, “individual heterosexuals
such as plaintiff were not up to the job.”
“This interpretation of the supervisor’s comment is speculative and not supported by the
record,” wrote the court, which observed that
the clients she was hired to serve were “not just
homosexuals.” Trial judge Solomon had interpreted this as being a comment on Berner’s
shortcomings as an employee.
Berner had also offered an affidavit from a
purported expert witness opining that her discharge was probably motivated by discrimination, but the appellate court commented that
this was “of little probative value” in a case that
would require direct evidence of discriminatory intent. “In any event,” commented the
court, “the reliability of the expert’s data with
respect to the sexual orientation of defendant’s
employees was not established.” The expert
presumably assumed, based on the organization’s name and origins, that the staff is overwhelmingly gay. A.S.L.
Botched Jury Instruction Leads to Retrial of Slayer
of Gay Man
In an unpublished ruling, the Florida 3rd District Court of Appeals ordered a new trial for
Kevaris Lamont Pollock, who was convicted of
manslaughter in the killing of Larry Sheppard.
Pollock claimed self-defense. Pollock v. State of
Florida, 2002 WL 1284671 (Fla.App. 3 Dist.,
June 12, 2002.) The Court of Appeals, in an
opinion by Judge Ramirez, found that the jury
had been “misled” by the closing statement of
the prosecution and the instructions from the
judge.
In 1997, Pollock who was then seventeen
years old and Sheppard, who was then twentyfour, became friends. Sheppard gave Pollock
gifts for his newborn daughter and for himself.
116
In 1998, Pollock found out that Sheppard was
gay and told him that he “did not share that lifestyle.” Sheppard continued to give Pollock gifts
for his daughter. Later in 1998, Sheppard invited Pollock to the movies and while driving
him home asked Pollock what he was going to
get him for Valentine’s Day. While they talked,
Sheppard rubbed Pollock’s leg and Pollock
pushed his hand away and told him he was not
interested. Pollock testified that when they got
to his home and he tried to leave, Sheppard
locked the car doors and again grabbed Pollock’s leg. Pollock resisted, but Sheppard
pushed his hand inside Pollock’s pants. Pollock
said that he then took Sheppard’s gun out of the
glove compartment and shot him six times.
Prosecutors argued that Pollock was trying to
rob Sheppard and charged him with first degree
murder, but he was convicted of manslaughter.
Pollock argued that he shot Sheppard “to prevent an imminent sexual battery upon himself.”
Judge Ramirez wrote that the prosecutor
misstated the law five times during his closing
argument by arguing to the jury that Pollock was
not in imminent danger of death or great bodily
harm from an attempted sexual battery. “This
repeated argument emphasized and capitalized
upon the erroneous jury instructions given by
the court.” The trial judge instructed the jury
that “a person is justified in using force likely to
cause death or great bodily harm if he reasonably believes that such force is necessary to prevent... great bodily harm to himself or another
and the attempt to commit sexual battery upon
himself or another.” The correct instructions,
according to the Court of Appeals, should have
been “or” rather than “and.” Daniel R Schaffer
H2 = 8th Circuit Holds Sharing Restroom
With Transgendered Colleague is Not Hostile
Environment Sexual Harassment
A three-member panel of the U.S. Court of Appeals, 8th Circuit, affirmed a summary judgment ruling against Carla Cruzan, a public
school teacher in Minnesota, who claimed that
a hostile work environment was created when
Debra Davis, a male to female transgendered
person, was allowed to use the women’s faculty
bathroom. Cruzan v. Special School District et
al. 2002 WL 1339108 (June 20, 2002). The
school district authorized Davis to use the
women’s restroom after its counsel advised of
its obligations under the state human rights law,
which covers “gender identity.”
David Nielsen ha worked since 1969 at the
School, and in early 1998 told administrators
that she would “transition” and change her
name to Debra Davis. The school worked with
her, legal counsel, the parent teacher association, students, parents, and psychologists on
her transition at work. Cruzan had asked
whether Davis would be allowed to use the
women’s faculty bathroom and was told that
“other arrangements would be made” for
Davis. After the school’s legal counsel cited the
Summer 2002
Minnesota Human Rights Act (MHRA), Davis
was allowed to use the women’s faculty bathroom. The MHRA prohibits discrimination on
the basis of a person’s “self-image or identity
not traditionally associated with one’s biological maleness or femaleness.”
After Davis had used the women’s faculty
bathroom for a few months, Cruzan saw her using a privacy stall. Cruzan immediately went to
the principal and complained about Davis being in the bathroom. The principal, who was in
the hallway with students, asked Cruzan to either wait in his office or to make an appointment
to discuss the matter. Cruzan refused and did
not raise the issue with the principal again.
But she filed a complaint with the Minnesota
Department of Human Rights (MDHR), which
dismissed it, finding that the MHRA “neither
requires nor prohibits restroom designation according to self-image of gender or according to
biological sex.” Cruzan subsequently filed a Title VII action, asserting religious discrimination, sex discrimination and a hostile work environment. Davis retired in 2001. The district
court granted summary judgement for the
school, without deciding Cruzan’s religious discrimination claim, finding that she failed to inform the school district of her religious beliefs
and did not suffer an adverse employment action because of it.
On appeal the 8th Circuit panel found, per
curiam, that Cruzan “expressed general disapproval of Davis’s transition and the school district’s decision to allow Davis to use the
women’s faculty bathroom,” but did not give a
reason other than “personal privacy.” Cruzan
argued that her filing with the MDHR met the
notice requirement. The panel rejected this argument, noting that “it is undisputed that Davis’s use of the female staff bathroom had no effect on Cruzan’s title, salary, or benefits.”
Cruzan avoided sharing a bathroom with Davis
by using the students’ bathroom.
The panel also rejected Cruzan’s claim of “an
abuse of the summary judgment procedure” by
having a male judge to decide what a “reasonable women” would find a “working environment that is abusive…”
The American Civil Liberties Union; OutFront Minnesota; Gay, Lesbian and Straight
Education Network of Minnesota; Harry Benjamin International Gender Dysphoria Association; and the National Center for Lesbian
Rights filed amicus briefs. Daniel R Schaffer
California Supreme Court Custody Ruling May
Benefit Gay Parents
In a unanimous ruling that may potentially
prove useful in custody petitions brought by
non-biological parents in Uniform Parentage
Act states, the California Supreme Court held
in In re Nicholas H., 2002 WL 1225026 (June
6, 2002), that a man who had been the domestic
Lesbian/Gay Law Notes
partner of a boy’s mother when the child was
born, but who was not related to the boy, was entitled to custody in a situation where the biological father of the boy was not in the picture
(and indeed had never been acknowledged as a
“father”). Although the unusual facts of the
case may make it sui generis and thus less than
dispositive in gay-related custody disputes,
nonetheless the decision recognizes concepts
of de facto parental status that might prove
transferable in appropriate cases.
As summarized by Justice Brown, writing for
the court: “When Kimberly was pregnant with
Nicholas, she moved in with Thomas. Thomas
is not Nicholas’s biological father, as he admits,
but both Kimberly and Thomas wanted Thomas
to act as a father to Nicholas, so Thomas participated in Nicholas’s birth, was listed on Nicholas’s birth certificate as his father, and provided
a home for Kimberly and Nicholas for several
years. Thomas has been the constant in Nicholas’s life… Thomas has lived with Nicholas for
long periods of time, he has provided Nicholas
with significant financial support over the
years, and he has consistently referred to and
treated Nicholas as his son. ‘In addition [according to the findings of the Court of Appeal],
there is undisputed evidence that Nicholas has
a strong emotional bond with Thomas and that
Thomas it he only father Nicholas has ever
known.’”
On the other hand, Kimberly has not been a
particularly effective mother, as the record supports Thomas’s allegations of “Kimberly’s drug
use, transiency, lack of gainful employment and
violence towards others.” The juvenile court
had determined that Nicholas had to be removed from her custody, at a time when she and
the child were not living with Thomas. Nicholas
had testified that he preferred to live with Thomas, complaining that his mother “hits and
slaps him” and smokes marijuana.” The juvenile court judge expressed concern about her
“mental and emotional health.”
The juvenile court decided to award custody
to Thomas, but the Court of Appeal felt that it
was stuck due to California precedents suggesting that a person who was not biologically related or legally related through adoption to a
child was not entitled to be awarded custody
over the objection of the child’s biological parent, and Kimberly, who had not specifically
been found to be an unfit parent, had the right to
veto this. The Supreme Court disagreed with
this interpretation of the statute and precedents.
Sec. 7611(d) of California’s version of the
Uniform Parentage Act provides, according to
Justice Brown, that “A man who receives a
child into his home and openly holds the child
out as his natural child is presumed to be the
natural father of the child.” The court of appeal
had decided that because both Kimberly and
Thomas testified that he was not the natural fa-
Lesbian/Gay Law Notes
ther of Nicholas, the presumption was rebutted in his case, and as a result he would not be
entitled to custody, even though, as the juvenile
court had observed, this would mean that
Nicholas was essentially fatherless, and in circumstances where Kimberly could not provide
a proper home, would have to be placed in the
custody of the state or put into foster care. (Actually, in this case it appears that Thomas was
trying to rescue Nicholas from state custody.)
The Supreme Court took a somewhat different view of the cited section and its interaction
with other sections of the Family Code. Pointing
out that in this case nobody has been proven to
be the natural father of Nicholas, since the man
who Kimberly claims impregnated her is not
available or interested in asserting parental
rights, Brown asserted “that a man does not lose
his statute as a presumed father by admitting he
is not the biological father,” reaching this conclusion by relying on sec. 7612(b), which provides: “If two or more presumptions arise under
section 7611 which conflict with each other, the
presumption which on the facts is founded on
the weightier considerations of policy and logic
controls.” “As a matter of statutory construction,” wrote Brown, “if the Legislature had intended that a man who is not a biological father
cannot be presumed father under section 7611,
it would not have provided for such weighing,
for among two competing claims for presumed
father status under section 7611, there can be
only one biological father.” Brown also observed that the legislature does not require
blood test evidence to be considered in determining issues of paternity. “It is unlikely the
Legislature would without explicitly so stating
adopt a contrary rule that blood test evidence
(or an admission) must defeat the claim of a
person who claims presumed father status under section 7611(d).”
The balance of the opinion is devoted to reviewing in detail all the relevant earlier court of
appeal decisions, distinguishing them, disapproving of one of them, and holding back from
taking positions on questions not necessarily
presented in this case, such as “what constitutional rights are enjoyed by a man who is not a
child’s biological father but who is seeking to
receive a child into his home and to achieve
presumed father status.” The upshot of the
opinion is that Thomas can be considered a
presumed father for purposes of this case, and
may ultimately be awarded custody of Nicholas.
The potential implications for gay parents
are both obvious and uncertain. While the
opinion accepts the proposition that things
other than biological or legal ties may be significant in determining parental status, on the
other hand it seems to rest entirely on a close
reading of legislative provisions dealing specifically with fathers, and most of the litigation
involving same-sex partner custody disputes
Summer 2002
concern women, not men. Whether the court
would transfer the general concept to a case in
which a former lesbian partner is seeking custody, or just visitation, with a child who remains
in the primary custody of her biological mother
especially a biological mother who does not exhibit the drawbacks of Kimberly is still an open
question. Nowhere in its decision does the
court specifically refer to California case law
involving same-sex partner custody or visitation disputes.
However, in an article in the Los Angeles
Times on June 7 discussing the case, Deborah
Wald, an attorney at the National Center for
Lesbian Rights, stated that the decision
“clearly establishes that people who know from
day one that they aren’t biological parents can
through their conduct become parents. And
that is huge… It is wonderful that courts are
looking beyond strict, formulaic definitions of
what constitutes a parent and are looking instead at who is important to the children.” Thomas’s attorney, Frank H. Free, hailed the “recognition by the state Supreme Court that
biology is not the most important factor in determining paternity.” A.S.L.
Civil Litigation Notes
U.S. District Court - California — One of the
major 9/11 issues for the LGBT community is
whether surviving same-sex partners of victims
have any legal claims that they could bring
against the airlines if the federal compensation
fund is unavailable to them. A recent decision
in a case involving opposite-sex domestic partners provides an unfortunate answer. In Beck v.
Alaska Air Group, 2002 WL 1162387
(U.S.Dist.Ct., N.D. Cal., May 24, 2002), District Judge Breyer faced a motion to dismiss for
failure to state a claim, where the plaintiff is allegedly the surviving opposite-sex domestic
partner of a passenger killed in an airplane
crash. The question whether Pamela Beck, the
surviving partner, could sue turned on whether
she is an appropriate party under federal maritime law, which applies to air crashes. In 1970,
the U.S. Supreme Court had ruled that the maritime jurisdiction includes wrongful death
claims. In the absence of a statute, the federal
courts look to both the Death on the High Seas
Act and to state wrongful death statutes to determine who may sue. Judge Breyer held that
the personal representative of an estate can
bring a wrongful death action for the estate, but
only a legal wife, husband, parent, child or dependent relative could personally bring a
wrongful death action. He granted the motion,
finding that Beck was not the estate representative and was not within the specified degrees of
legal relationship to the deceased.
Federal - Pennsylvania — In Sterling v. Borough of Minersville, 232 F.3d 190 (3rd Cir.
2000), the court allowed a constitutional suit to
117
go forward against a police officer who allegedly threatened to “out” a teenage boy to his
grandfather, after which the boy, told another
boy who was present that he would commit suicide, and he subsequently did so. The case
went to a jury trial, but the jury ruled in favor of
the defendants. Now, U.S. Magistrate Arnold C.
Rapoport has granted a new trial in Sterling v.
Willinsky, having found upon reviewing the record that the jury’s decision was against the
weight of the evidence. Rapoport found that the
testimony of the plaintiff’s key witnesses was
corroborated by several credible and uninterested witnesses, while the defendant’s story
was back up only by one interested witness who
did not actually here the conversation between
the police officer and the boy who later committed suicide. Rapoport quoted the following language from an earlier opinion in justification of
his ruling: “A reasonable jury could not have
come up with a verdict for defendants on all of
the claims. While it is unclear if the jury was
guided by passion and prejudice or a misunderstanding of their duties, having had the opportunity to observe the demeanor of the witnesses,
the court is certain that the verdict for the defendants on all claims was contrary to the
weight of the evidence and allowing the verdict
to stand would permit a miscarriage of justice.”
Allentown Morning Call, June 26; Legal Intelligencer, June 27.
U.S. Bankruptcy Court - Minnesota — A gay
man filed for personal bankruptcy at a time
when he still owed a significant amount of
money on a loan from his former domestic partner’s mother. The mother had made the loan in
order to assist the man to pay off a back-tax assessment by the government, so that the man
and her son would be able to get a mortgage to
buy a house. Several years later, the relationship between the man and her son ended, the
son moved out of the house, the man sold the
house, and the son sued the man for his share of
the asset; that suit was resolved in a settlement
agreement. In Rasmussen v. Unruh, 2002 WL
1072059 (Bankr.D.Minn. May 8, 2002), Bankruptcy Judge O’Brien granted Ione Rasmussen’s motion as a creditor to reject Richard
Unruh’s bankruptcy petition on grounds that it
had materially misstated his assets and debts.
As a result, her loan to him will not be dischargeable in bankruptcy. In defending the action, Unruh tried to argue that the loan had been
a gift to him and her son in order to make it possible for them to buy the house, or that his liability on the loan should be considered settled
due to his asset settlement with her son, Brian,
his former domestic partner. Judge O’Brien rejected both these contentions, and commented
that since he was denying Unruh’s bankruptcy
petition, the loan to Mrs. Rasmussen would be
permanently render non-dischargeable in
bankruptcy.
118
Florida — Michael Kantaras, the transgendered father who is embroiled in a custody dispute over his adopted children with his ex-wife,
was awarded temporary custody by Senior
Pasco-Pinellas Circuit Judge Gerard O’Brien
due to Linda Kantaras’s failure to abide by the
visitation order in effect in the case until a final
decision can be made on the merits. Judge
O’Brien found that Linda violated a term of the
order that required her to refrain from using her
ex-husband’s transsexuality to turn the children against him. Michael will not have primary custody until the case is decided. A
three-week trial was held, ending in February.
Linda’s attorneys claimed that when the couple
wed she did not know that Michael had formerly been a woman, and argued that the adoptions by Michael of children born to Linda
should be invalidated based on Florida’s law
against gay adoptions. The case has garnered
national media attention. Tampa Tribune, June
5.
New Jersey — The New Jersey Supreme
Court, unanimously reversing an appellate division decision, held that a man was entitled to
pursue his contract and tort claims against a
group of Catholic priests and the Archdiocese
of Camden, based on allegations of same-sex
harassment while the plaintiff was in training
for the priesthood. McKelvey v. Pierce, 2002 WL
1466823 (July 10, 2002). The trial and intermediate appellate courts had granted defendants’ motion to dismiss, finding that allowing
the litigation to proceed would violate the Religion Clauses of the 1st Amendment by excessive entanglement of the judicial process in the
internal personnel policies of the church. Rejecting this argument in an opinion for the
court, Justice Long maintained that the church
is not above the law, and is responsible for torts
and breaches of contract. In this case, the man
claimed that so many self-identified gay priests
came on to him and pressured him to join in homosexual activity that he had to quit the program. The response of the Archdiocese to his
leaving had been to send him a bill for all the
educational expenses it had incurred for his
training. (Shades of the U.S. military, which
customarily sent a bill for tuition to gay ROTC
members who were kicked out of the service
until recent changes in policy.) The supreme
court held that it was premature to grant a motion to dismiss on 1st Amendment grounds. The
defendants should be required to answer the
complaint and submit to discovery, and issues
of excessive entanglement could be dealt with
on an issue-by-issue basis as the litigation proceeded.
Idaho — The Idaho Statesman reported on
July 11 that Bonneville County Magistrate
Mark Riddoch ruled that a gay father may not
have visitation with his two school-age children
as long as he is living with a gay partner. Theron
McGriff and his partner recently bought a
Summer 2002
house together. In order to allow McGriff to
keep seeing his children, his partner has moved
into a mobile home parked in front of the house.
Riddoch ruled that Shawn McGriff should be
awarded primary legal and physical custody,
and that Theron could only exercise visitation
provided “Father is not residing in the same
house with his male partner.” Theron is contemplating an appeal, but Shawn’s attorney,
Marie Tyler, is confident that the Idaho Supreme Court, which has never previously ruled
in a case involving a gay parent, would follow
the lead of North Dakota, Ohio and Michigan,
where courts have placed such restrictions on
gay parents’ visitation rights.
Kentucky — The Lexington Herald Leader
reported on July 4 that Franklin Circuit Judge
William Graham had issued an order against E.
John Reinhold, chief executive of Medi-Share,
a “Biblical” alternative health insurance company, forbidding the company from doing business in Kentucky. Medi-Share is a selfdescribed “cost-sharing program” open only to
Christians, and it specifically refuses to provide
services to those with “unbiblical lifestyles,”
including, inter alia, gays and lesbians. (Somebody at Medi-Share is not reading their Bible
carefully enough!) A spokesperson for the company said that it had hundreds of Kentucky
families among its members. The state insurance department, which sought the court order,
maintained that this was an unlicenced insurance company that was violating fair practice
policies.
Federal - New York — On June 27, a federal
district court jury in Brooklyn found that a Toys
‘R’ Us store had unlawfully allowed harassment
and discrimination against three transsexual
customers, in violation of public accommodations and civil rights laws, but made token damage awards of only $1 to each of the plaintiffs.
Their lawyer, LeGaL member Tom Shanahan,
called the verdict a “moral victory in a landmark case for the gay and lesbian and transsexual community.” Ironically, the defendant had
sensed the direction in which things were heading and had offered each of the plaintiffs a $100
gift certificate in an attempt to settle the case.
They were seeking damages of $300,000 each,
claiming that they were menaced by store employees and threatened with baseball bats. The
trial was held before District Judge Charles
Sifton, who was reportedly angered when the
defendant’s attorney stated during his opening
that it was unsurprising that the plaintiffs had
attracted “comments” in light of their appearance. New York Daily News, June 28; Newsday,
June 28.
Massachusetts — The Massachusetts Appeals Court for Middlesex County upheld a
conviction for second-degree murder and kidnapping of Charles Jaynes, a pedophile whose
attempt to interest a 10–year-old boy in having
sex ended tragically in the boy’s death. Com-
Lesbian/Gay Law Notes
monwealth v. Jaynes, 2002 WL 1340242 (June
21, 2002). One ground for appeal raised by Jaynes was that the trial court closed the courtroom
during voir dire at the request of some of the potential jurors, due to questioning about juror attitudes towards and experiences concerning
homosexuality. The appeals court found that
while the defendant is entitled to an open and
public trial, his rights were not violated by the
limited closure during voir dire, where the trial
court had followed a procedure that has been
approved by the U.S. Supreme Court in PressEnterprise Co. v. Superior Ct. of California, 464
U.S. 501 (1984), under which the court informs
prospective jurors in advance of any sensitive
questioning that is expected to occur and offers
to close voir dire so that only counsel and parties are present during questioning. The court
found that in this case “the interests of individual members of the venire in maintaining their
privacy while providing the court and the parties extremely sensitive information about their
beliefs and life experiences was an overriding
one,” and that the trial court struck the correct
balance. Also, notably, Jaynes’ attorney did not
object at the time, and stated no objection to the
ultimate selection of jurors.
Federal — Minnesota — A county police officer who allegedly twice solicited a gay teenager to give him a “blow job” in his squad car
may be liable to the youth for sexual abuse, but
not in federal court, ruled U.S. District Judge
Manson in Kemmer v. Beltrami County/Beltrami County Sheriff ’s Dept., 2002 WL
1348007 (D. Minn., June 18, 2002). Judge
Manson aptly describes the factual allegations
in this case as “seemingly tailored more for a
made-for-TV movie, than litigation.” The whole
story is too lengthy to recount here. It suffices to
say that Jerry Kemmer, a gay man born in 1979,
was apparently a police groupie who liked to
dress up in quasi-police outfits, hang around
with cops, and even impersonate a police officer. He has accumulated a bunch of convictions, including for such impersonation, for
sodomy, for driving with a suspended license,
and for writing worthless checks. He claimed
that on several occasions Deputy Ernie Beitel
invited him into his squad car and offered to let
him off from one offense or another if he would
perform oral sex on Beitel, which he did. Things
came to a head when Kemmer, by now at least
20 but under the age for drinking in Minnesota,
was out drinking and driving erratically and
ended up leading police a 60–mile high-speed
chase, that ended in his being roughed up a bit
by police officers when he was arrested.
Kemmer filed suit, which the police removed to
federal court and moved to get rid of by summary judgment. Many of the claims had been
withdrawn by stipulation, leaving just a few for
resolution, and the court ruled against Kemmer
on all his federal claims. Judge Manson did find
there was a potential viable claim against Beitel
Lesbian/Gay Law Notes
for sexual abuse, since Kemmer was a minor
under state law for at least two of the “blow job”
allegations, but that the court would not exercise discretion to deal with the state law claim
in the absence of any viable federal claim, and
remanded to the state district court from which
the case had been removed by the defendants.
This one is fun to read, and would make a neat
little TV movie, as the court suggested. Manson
(or a clerk in chambers) knows how to tell a
story in prose…
New York — The N.Y. Appellate Division, 1st
Dept., revived a state law antitrust battle between two local gay publications with a unanimous decision in Two Queens, Inc. v. Scoza,
2002 WL 1424583, 2002 N.Y. Slip Op. 0552,
issued on July 2. The battle is between the
popular HX and Next magazines. HX included
a non-competition clause in its employment
agreements. When Ronald Scoza left to work
for Next, HX filed suit to enforce the clause.
Next counterclaimed with an antitrust charge:
that HX was giving out free or discounted advertising with the proviso that advertisers eschew Next. HX persuaded trial judge Karla
Moscowitz to dismiss the counterclaim, arguing
that Next’s circulation had continued to grow
and that because most of HX’s ad revenue
came from national advertisers, the antitrust
claim was preempted by federal law. In unanimously reversing, the appellate panel pointed
out that the preemption issue turns on whether
the main impact of the alleged anti-competitive
practice was local or national, an issue that was
sharply disputed and could not be resolved on a
pre-discovery motion to dismiss. And the local
NYC gay media wars continue.
Washington State — A settlement has been
reached in the litigation between Frank
Vasquez and the surviving family members of
Robert Schwerzler, whom Vasquez contended
was his domestic partner. Upon Schwerzler’s
death intestate, his legal heirs sought to remove
Vasquez from the house in which the men had
lived together for several decades. The “family” contended that the men were merely roommates and that Schwerzler was not gay. A trial
judge had granted summary judgment to
Vasquez, using a state common law theory of
meretricious relationship, but was reversed by
the court of appeals, which had ruled that this
doctrine could not be used for same-sex couples, since it was intended to apply to quasimarital relationships between persons of the
opposite sex. The state supreme court reversed
that decision last November, in Vasquez v. Hawthorne, 33 P.3d 735 (Wash. 2001), finding that a
disposition on motion had been improper because there were contested factual issues about
the nature of the men’s relationship. The case
having been thrown back into the trial court, the
parties settled down to negotiate something that
would keep Vasquez, elderly, ailing and illiterate, in the house. Under the settlement, he gets
Summer 2002
to stay for the rest of his life, but ownership of
the house goes to the legal heirs, who will receive a payment from Vasquez’s law firm. The
Schwerzler family will pay to maintain the
structure and take care of property taxes, and
Vasquez will assume responsibility for interior
maintenance, windows and groundskeeping.
Trial court judge Vicki Hogan approved the settlement on June 26. Both sides proclaimed satisfaction, Schwerzler’s heirs stating that they
hadn’t wanted to make Vasquez homeless, but
wanted to protect their property interests in the
house. Tacoma News Tribune, July 10. A.S.L.
Criminal Litigation Notes
U.S. Supreme Court — On June 3 the Supreme
Court denied certiorari in Cockrell v. Burdine,
2002 WL 1159629, a last-ditch attempt by the
state of Texas to executive Calvin Burdine, a gay
prisoner whose court-appointed attorney slept
through significant portions of his trial, an occurrence which eventually led after may years
of litigation to a decision by the U.S. Court of
Appeals for the 5th Circuit to grant a writ of habeas corpus on grounds that Burdine’s right to
counsel during his murder trial was violated.
See Burdine v. Johnson, 262 F.3d 336 (5th Cir.
2001). While Burdine’s counsel slept, the
prosecutor argued to the court that sentencing a
gay murderer to life in prison would not be any
punishment at all, leading to a fair implication
that the prosecution, at least, meant to argue
that gays convicted of murder should be put to
death, as contrasted to some other murder defendants, specifically because of their sexual
orientation. Now, the state will have to retry Mr.
Burdine if they want to execute him. Considering how much time has past since the underlying crime, effective retrial may be an impossibility.
California — The California Court of Appeals made history in People v. Garcia, 77 Cal.
App. 4th 1269 (2000) (not officially published), when it held that prosecutors could not
excuse jurors solely on the basis of their sexual
orientation, a ruling that resonated so strongly
that California’s legislature went on to codify it.
But what of Cano Garcia, the criminal defendant whose burglary conviction was vacated in
that opinion as a consequence of the trial
court’s rejection of Garcia’s objection to the
prosecutor’s excusing two lesbian venire members? The case was remanded to give the prosecutor an opportunity to explain his grounds for
excluding the two. On June 24, in People v. Garcia, 2002 WL 1365643 (Cal. App., 4th Dist.),
the court affirmed Orange County Superior
Court Judge Corey S. Cramin’s ruling that the
prosecutor’s explanations were sufficient to
have avoided the taint of a discriminatory excusal. In effect, the prosecutor said he didn’t
want a graduate student on the jury, because
graduate studies tend to over-intellectualize
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the matters presented for decision, and he
didn’t want to the other woman because she
seemed to be too friendly with the graduate student! The trial court found that this had nothing
to do with the women’s sexual orientation and,
writing for the Court of Appeal, Judge Bedsworth agreed. So Garcia’s conviction stands.
Colorado — Shaun Murphy was sentenced
to 40 years in prison on June 3 for the murder of
Fred Martinez, a 19–year-old “two spirit”Native American (according to some of his
friends). Martinez’s mother and others contended that Murphy killed the boy because of
Fred’s sexuality, which combined elements of
transgender and homosexuality. Murphy had
pled guilty to second-degree murder, and contended that he was intoxicated and confused at
the time of the crime, which he characterized as
an accident. Martinez’s body was found in a
desert canyon, his skull smashed. The district
attorney presented evidence that Murphy had a
history of violent assaults, and Montezuma
County District Judge Sharon Hansen, who
passed sentence, commented to Murphy that
she was most disturbed by his leaving the scene
and not even calling anonymously for medical
help for Martinez, knowing that he was hurt.
Murphy’s mother, a lesbian, and his aunt, a
transsexual, both denied the Murphy was
prejudiced or would have killed Martinez because of his sexuality. They contended that he
fought Martinez in self-defense. Denver Post,
June 4.
District of Columbia — Joseph Mesa, a
former Gallaudet University student convicted
of murdering fellow-students Eric Plunkett and
Benjamin Varner, received 6 concurrent life
terms without parole from D.C. Superior Court
Judge Robert Richter on July 10. Associated
Press report. In the case of Plunkett, Mesa’s defense was insanity and homosexual panic, allegedly brought on by an unwanted homosexual
advance. The jury apparently gave little credence to this, in light of the viciousness of the
crime against Plunkett, who was kicked repeatedly in the head and bludgeoned with a desk
chair.
Nebraska — What can the jury be thinking
as it hears testimony in the trial of Roger Van, a
55–year-old florist charged in a small city Nebraska court with the sexual torture and imprisonment of a Houston, Texas, man. Van’s defense
at the trial, which was ongoing as we went to
press, was that the victim consented, in advance, to everything that was done to him. Van
has a dungeon set up in the basement of his florist shop, where he practices the arts of S&M
sex with consenting partners. He claims that
through a series of hundreds of emails over a
period of three months, he and the “victim” had
reached an agreement for an extended S&M
scene, and that the victim, upon arrival, had insisted on no “safe word” to end the scene. In his
testimony, the victim indicated that he had
120
been depressed and was seeking to punish himself for perceived failings when he agreed to
this activity, and after a few days of being tied
down, whipped, beaten, branded and sexually
used, had come to regret his decision and
wanted to end the experience, but that Van refused, holding him “captive” for nine days.
Van’s partner, Jerry Marshall, who has pled
guilty to a misdemeanor charge for his participation, helped the victim to escape. Still to
come was testimony by a psychologist about
S&M practices, keying in on the issue of
whether valid consent can exist in such arrangements. Omaha World-Herald, July 9 &
10. For an academic consideration of the issues
raised by this case, see the article by Monica
Pa, cited below.
Texas — Legal realism in Fort Worth! In In
the Matter of C.J.H., 2002 WL 1291855 (Tex.
Ct. App., Ft. Worth, June 13, 2002), the court
was considering the appeal of a sentence imposed on a gay teenager for sexually molesting
his mother’s boyfriend’s six-year-old boy. One
possibility would have been to send young
C.J.H. to a year of “boot camp” prison, but
C.J.H. reacted in terror to that proposal. According to the opinion of the court of appeals by
Justice Dauphinot, “Appellant did not want to
go to boot camp and that if he did go to boot
camp, he was in danger of ‘getting into conflicts, fights, and being picked on for his sexual
orientation or ... being exploited sexually for
oral and anal sex.’ A letter, apparently from a
boot camp teacher, indicated that the current
boot camp inmates knew about Appellant’s
sexual orientation and planned to hurt him
when he arrived. A letter from the boot camp
case manager to the juvenile probation officer
rejected Appellant as a candidate for the camp
‘due to safety issues.’” In other words, although
criminal justice authorities routinely deny that
sexual assault is a significant problem in their
facilities, in this instance it couldn’t be denied
and the whole sordid mess goes right into the
court’s opinion; these prison authorities lack
enough control over order within their facilities
to prevent sexual assaults of gay inmates. Ultimately, the court sentenced C.J.H. to go into the
custody of the Texas Youth Commission for an
indefinite period to participate in the sex offender program; upon successful completion of
the program, he may be discharged back to his
mother’s custody. A.S.L.
Legislative Notes
Federal — For the first time, the federal government has enacted a new benefit program that
will have the effect in some cases of providing
benefits to the same-sex partners of persons
covered by the law. In the “Mychal Judge Police and fire Chaplains Public Safety Officers’
Benefit Act of 2001” Congress widens the
range of permitted beneficiaries under a pro-
Summer 2002
gram that pays compensation to public safety
officers who are killed in the line of duty. Where
previously, benefits were limited to surviving
spouses or children of police or firefighters, the
new law widens the scope of coverage of chaplains, and broadens the scope of beneficiaries,
in cases where a public safety officer is not survived by a wife or children, to whoever was
named as a beneficiary in the individuals’ most
recent life insurance policy. According to an
Associated Press report on June 24 reporting
that President George W. Bush had signed the
measure into law, some Republicans had opposed the bill because designated beneficiaries
may include unmarried partners (including
same-sex partners) of public safety officers and
chaplains, but in the end it was passed without
formal opposition in either chamber of Congress. The measure was adopted as an amendment to the Omnibus Crime Control and Safe
Streets Act of 1968, and will be codified at 42
U.S.C. 3796(a) and (b). The measure takes effect retroactively to September 11, 2001, and
was inspired by the heroism of Father Mychal
Judge, the Catholic chaplain for the N.Y.C. Fire
Department who died during the World Trade
Center attack and who was known by many in
New York to be gay.
Federal — Our report in the last issue on the
proposed U.S. Marriage Amendment to the
Constitution omitted part of the language of the
Amendment. The full test is as follows: “Marriage in the United States shall consist only of
the union of a man and woman. Neither this
constitution or the constitution of any state, nor
state or federal law, shall be construed to require that marital status or the legal incidents
thereof be conferred upon unmarried couples
or groups.” This amendment would arguably
have blocked the Vermont Supreme Court’s decision in Baker v. State of Vermont, 744 A.2d
864 (Vt. Supreme Ct. 1999), which construed
the Vermont constitution’s common benefits
provision to require that same-sex couples be
afforded all the legal rights and responsibilities
that are provided for opposite-sex couples under the state’s marriage laws. Whether it would
also invalidate the resulting Vermont Civil Union law would depend how broadly it would be
construed. Political observers gave little
chance of it surviving the ratification process,
however.
Federal — Senator Mark Dayton, a Minnesota Democratic, introduced a bill in the Senate
on June 27 to extend health, retirement and life
insurance benefits to same-sex partners of federal employees. Rep. Barney Frank, a Massachusetts Democrat, introduced a companion
bill in the House. Frank said that he expects
“total opposition” from the Bush Administration to this bill, even though Bush had just
signed a measure to extend some benefits to
surviving same-sex partners of public safety officers who dies in the 9/11 terrorist attacks at
Lesbian/Gay Law Notes
the World Trade Center and the Pentagon.
Frank said Bush “had to sign that bill because
the firefighters were pushing hard for it.” Minnesota’s other senator, Paul Wellstone, is a cosponsor of the bill. Star Tribune, June 28.
District of Columbia — On July 8, the District of Columbia finally launched its domestic
partnership registration program, ten years after the city council first voted to set it up. The
delay was due to Congress, which included in
every subsequent D.C. appropriations bill a
ban on implementation of the program. Finally,
this year, Congress desisted and President
Bush signed an appropriations measure without the ban. Mayor Anthony Williams noted
that the District now joins eight states, 132 municipalities, 168 Fortune 500 companies,
4,010 private employers, non-profits and unions, and 167 colleges and universities in providing domestic partnership benefits for employees. Registration under the law also
provides some other benefits for nonemployees of the district in their dealings with
the district government. Washington Post, July
9.
Colorado — In a surprise turnabout, the
University of Colorado regents approved health
care benefits for same-sex partners and dependents of gay employees on a 5–4 vote on
June 27. The regents had voted last year to add
sexual orientation to the University’s nondiscrimination policy, but had balked at going
all the way to benefits entitlements. The policy
will take effect in November, when university
officials predicted that about ten people will
enroll. (Either it’s a very small university, or
these officials don’t know their staff very well.)
Denver Post, June 28.
Florida — The Sarasota City Commission
voted unanimously on July 1 to let voters decide
whether to amend the city’s charter to add a
non-discrimination provision that would cover
race, religion, sexual orientation “and other criteria” in employment, housing, and public accommodations, according to a report in the July
2 issue of the Sarasota Herald-Tribune. Specific
language was to be proposed to the Commission
at its July 15 meeting, for inclusion on the ballot
in November. There is an Aug. 26 deadline for
approval of specific charter-altering language.
••• On June 20, Orlando’s Human Relations
Board approved a recommendation to the city
council to pass an ordinance prohibiting discrimination in employment, housing and public accommodations on account of sexual orientation. City law already bans discrimination on
the basis of race, religion, color, national origin,
sex, age, disability and marital status. Some local religious leaders vowed to oppose the proposal. Bradenton Herald, June 21.
Illinois — HB 101, which would prohibit
discrimination on the basis of sexual orientation in employment, housing, public accommodations and credit again went down to defeat in
Lesbian/Gay Law Notes
the Illinois legislature. Although the
Democratic-controlled House passed the bill
on a 60–55 vote last year, it was bottled up in
the Republican-controlled Senate. State Senator John Cullerton, a Chicago Democratic who
is the lead sponsor in that chamber, never
called the bill up for a committee hearing because of his perception that it would be rejected
in the Executive Committee and never achieve
a floor vote. Hopes are pinned on the fall elections. St. Louis Post-Dispatch, June 2.
Portland, Maine — The City Council voted
6–3 to enforce its ordinance requiring city contractors to provide same-sex domestic partnership benefits against the Salvation Army, which
sought an exemption on religious grounds. Under terms of the resolution passed by the council, the Salvation Army will lose funding for the
Meals on Wheels program and the senior center
it operates. Then, in an 8–1 vote, the Council
approved a proposal to repeal a part of the ordinance exempting some grant-receiving organizations from compliance, responding to a new
state law that requires health insurance companies to offer domestic partnership benefits if
they offer benefits to married couples. Prior to
passage of the law, the city was powerless to enforce its policy affirmatively against such organizations. Portland Press Herald, June 4.
Anne Arundel County, Maryland — The
school board in Anne Arundel County unanimously voted to approve a new policy protecting students from harassment and employees
from discrimination on the basis of sexual orientation, becoming at least the third Maryland
county, after Howard and Montgomery counties, to adopt such a policy. The June 5 vote was
described by the school superintendent as a
matter of “common sense.” The new policy
calls for school officials to take disciplinary action against anybody who harasses gay students, and guarantees gay students equal access to school programs and activities.
Baltimore Sun, June 6.
North Carolina — The Durham City Council
voted 4–3 against a proposal that would have
extended health and dental coverage to samesex partners of city employees. The City Manager had supported the proposal after hearing
from two employees who wanted benefits for
their partners. The city includes sexual orientation in its non-discrimination policy, but a majority of Councilmembers were swayed by arguments about the moral implications of allowing
unmarried couples to receive the same benefits
as married couples. Raleigh News & Observer,
June 19.
Oregon — On June 20, the Multnomah
County Commissioners voted 3–2 not to give
employee charitable donations to agencies that
discriminate, but the measure was compromised to the extent that the county will continue
to support United Way, even though the local
United Way still supports the Boy Scouts of
Summer 2002
America. However, United Way would not be
allowed to pass along any county money to the
BSA. Potential charitable recipients will have
to affirm that they do not discriminate on the
basis of race, religion, color, sex, marital status,
familial status, national origin, age, mental or
physical disability, sexual orientation, gender
identity or source of income. Portland Oregonian, June 21. A.S.L.
Law & Society Notes
Michigan — In a startling reversal of an established procedure, Washtenaw County, Michigan, Chief Judge Archie Brown issued a directive that second-parent adoptions may not be
granted in the county’s courts, which include
the county court in Ann Arbor, which has been
granting a significant number of such adoptions
to lesbian couples in recent years. Brown found
that the adoptions violate a state law that allows
only individuals and married couples to adopt
children. Virtually all the second parent adoptions granted in Michigan have been in Ann Arbor, including 17 in 2001 and 7 so far this year.
Brown indicated that adoptions already granted
would not be disturbed, but that judges are not
to adopt any new ones. Will the trial bench of
Ann Arbor take this lying down? Next question.
Ann Arbor had been the only place in the statute where same-sex couples could find sympathetic courts to approve adoptions. Detroit Free
Press, June 5.
California — On June 5 the University of
California Board of Regents voted to extend retirement benefits to UC employees with domestic partners. The benefits will go into effect
throughout the UC system effective July 1. The
Regents estimated that 2 percent of their
128,500 employees have same-sex partners
and 6 percent have opposite-sex domestic partners, resulting in a one-time cost to fund future
benefits obligations of $139 million, and ongoing annual costs of about $7 million. The system had previously extended health insurance
coverage for employees with same-sex partners
only. Santa Fe New Mexican, June 5.
Massachusetts — Seeking to signal its disagreement with the Boy Scouts of America’s official anti-gay policies, the Minuteman Council, which oversees more than 18,000 Scouts
and 3,300 adult members in the Boston area invited openly gay radio commentator David
Brudnoy to be the master of ceremonies at its
annual fund-raising dinner on June 10. Last
year, the Council approved a bylaw explicitly
prohibiting sexual orientation discrimination,
and is waiting to hear whether it will be expelled by the national organization. Boston
Globe, June 10.
Virginia — Governor Mark Warner was disappointed by the refusal of the Virginia Housing Development Authority Board to change its
criteria so that same-sex couples could receive
121
loan assistance. So disappointed that he has appointed openly-gay Jay Fisette, a member of the
Arlington County Board, to an opening on the
state housing board. Predictably, a spokesperson for the Richmond-based Family Foundation, an anti-gay group, condemned the appointment as part of a plot by Warner to destroy
the morals of Virginia by “endorsing homosexual relations,” in violation of the state’s sodomy
law. Fisette’s response: “I didn’t realize I was
that important. Their limited view of the world,
and families, is clearly a step back in time and
quite different from the world we live in.”
Warner’s spokesperson, press secretary Ellen
Qualls, said the appointment was a “clear message” that the governor was committed to
changing the rule, which she characterized as
the most restrictive in the nation. “Fisette is the
kind of person the governor is looking for, because he’s looking for people to vote to expand
the lending policy to serve more Virginians.”
Washington Post, July 11. A.S.L.
International Notes
Late-Breaking News Flash — As we were going
to press, we learned that the European Court of
Human Rights issued an important decision on
transgender rights in a case involving the U.K.,
and the Toronto Division of the Ontario Superior Court of Justice issued a decision favoring
the plaintiffs in a pending suit by same-sex couples seeking the right to marry. We did not have
full text of these decisions in time to write about
them in this issue of Law Notes, but we will provide full reports in the September issue.
International — An international on-line
sperm bank was scheduled to be launched in
late June for the use of lesbians seeking to have
children through donor insemination. The
sperm bank can be accessed at www.mannotincluded.com. National Post, June 25. The Express reported on June 27 that in its first 48
hours of operation, the site received 8,000 registrations, with 3,000 lesbian couples seeking
sperm and 5,000 gay men signed up as potential donors.
India — India’s law Centre is conducting a
study on the legal, social and ethical aspects of
legalising gay sex among consenting adults, in
response to an inquiry from the nation’s high
court, which is considering an application from
Naz Foundation, a gay rights group, to declare
Section 377 of the Penal Code (“Unnatural Offenses”) in applicable to consensual gay sex
between adults. Times of India, June 25.
Great Britain — Clare Steen, a male to female transsexual, achieved a handsome monetary settlement of her discrimination claim
pending against Structural Polymer Systems
Ltd before the Equal Opportunities Commission. Daily Telegraph, June 26.
New Zealand — Prime Minister Helen Clark,
extended a “personal apology on behalf of the
122
government” to gay New Zealanders for the historic discrimination they have suffered. In an interview with Express, a gay newspaper, she said,
“It’s been disgraceful, of course it has. People
have put up with the most appalling discrimination, stereotyping, people have been criminalised.” Reporting on this, the Christchurch
Press (June 5) pointed out that NZ’s Labor Party
had “clearly branded itself as ‘the gay party,’”
with three openly gay or lesbian representatives
in the Parliament, and three additional lesbian
candidates in the top 50 position in the party
list for future elections.
Austria — Austria’s State Secretary for Finance, Alfred Finz, has called for the abolition
of Paragraph 209, which sets a higher age of
consent for gay sex than is set for non-gay sex.
The statute has attained controversial status
lately with some high level prosecutions of men
for having sex with teenager boys. If the age of
consent is equalized as between gay and nongay intercourse, most of these incidents, which
involved boys 16 or older, would have been legal. Die Presse, June 5.
Manitoba, Canada — The New Democratic
Party government in Manitoba introduced legislation on June 6 that would provide recognition for same-sex partners in several respects,
including the ability jointly to adopt children
and to make medical decisions for a partner.
The law would also require that relationship
with same-sex partners be disclosed and taken
into account in terms of conflict of interest rules
governing the members of public bodies. Later
in the session, the government is expected to introduce legislation on property rights for
same-sex partners. Winnipeg Free Press, June 7.
Quebec, Canada — The Quebec legislature
approved a civil union bill, becoming the second province after Nova Scotia to do so. The bill
gives same-sex couples the same rights and obligations as married heterosexual couples, including adoption rights and rights to artificial
insemination, according to a Reuters bulletin
published in the Philadelphia Inquirer on June
9. Openly lesbian cabinet minister Andrea
Boulerice commented, “We are celebrating a
historic moment today,” after the bill was
passed. The minimum age for civil unions was
set at 18, but 16–year-olds may contract heterosexual marriages in Quebec. Divorces for
civil unions will be less complicated than for
marriages; if there are no children, a notary
public can witness a divorce agreement.
Korea — The Korea Times (July 5) reports
that the Pusan District Court approved on July
3 a change of gender on a citizen identification
card for a male to female transgender person, a
first in Korea. The Korean Medical Association
has estimated that about 300 to 400 Koreans
under sex reassignment procedures each year,
but this is the first time a court has authorized
such a gender change for this reason. The few
past cases in which changes were allowed had
Summer 2002
to do with “biological reasons, such as chromosome unbalance and defects,” according to the
news report.
Jerusalem, Israel — Jerusalem experienced
its first gay pride march on June 7, with estimates that at least 4,000 people took part in the
parade, facing down a small number of vociferous protesters. While the city government had
refused to provide direct financial support for
the event, it did allow gay rights banners to be
strung up on street lamps and provided a high
level of security protection. A large-scale gay
rights celebration has been an annual event in
Tel Aviv for many years. Israel provides a
higher level of recognition and protection for
gay rights than many other western nations in
terms of decriminalization of sex and protection
against employment discrimination, but is still
behind in family law, a subject largely controlled by religious conservatives. Jerusalem
Post, June 9;
Sweden — The Swedish Parliament voted on
June 5 to approve a proposed law that allows cohabiting same-sex couples who have registered
a legal partnership to apply jointly to adopt a
child, either from within Sweden or from
abroad. Thus the Swedes go one step further
than the Danes, Dutch and Icelanders, who
permit same-sex adoptions of children within
their borders. However, the new law is seen as
likely having little extra-territorial impact,
since none of the other European countries surveyed by the Foreign Ministry would consent to
have a same-sex couple from another country
adopt one of their children. Few children are
put up for adoption in Sweden, so the main impact of the law will probably be for situations
where a person in a same-sex relationship has a
child and her partner wants to adopt the child.
The Independent London, June 7.
The Netherlands — The latest census shows
that there are about 50,000 gay and lesbian
families in the Netherlands, an increase of 25%
over those counted five years ago. The census
showed that gay partnerships were more common among men than women, that about one of
every seven couples had legally formalized
their partnership either by registering as partners or by marrying under the new law that went
into effect last year, and that one in every 13
same-sex couples have adopted children. Most
of those adopting children have been lesbian
couples. Gay.com Newscenter, June 5.
Canada — On June 28, 2002, the new Immigration and Refugee Protection Act and accompanying regulations went into effect, under
which Immigration Canada now recognizes
same-sex partners as “common law” spouseequivalents, including such partners in the
“Family Class,” so they can be sponsored by a
Canadian citizen or permanent resident. The
Act introduces a procedural structure for dealing with gay family claims, and establishes appropriate forms for administering such claims.
Lesbian/Gay Law Notes
Ireland — Mr. Justice McKechnie of the
High Court of Ireland ruled against a petition
by Dr. Lydia Annice Foy, a dentist, for a new
birth certificate listing her as female, on July 9.
Dr. Foy, born Donal Mark Foy 55 years ago in
Athy, County Kildare, underwent gender reassignment surgery in 1992 after being diagnosed
as transsexual, and changed her name through
an administrative process. In a 130–page decision reviewing in detail scientific evidence, the
judge concluded that Dr. Foy had been born
male with conforming biological structures,
and that the state of evidence is not yet such as
to show that there is a biological basis in the
brain for transsexuality, thus as a matter of law a
transgender person cannot be declared by the
court to be a member of the opposite sex.
McKechnie noted the complication that at the
time of the operation, Dr. Foy was married to a
woman and had two children, and was not divorced from her until some years after the operation. In opposing Foy’s petition, the ex-wife
had argued that a new birth certificate would
invalidate the marriage and affect the status of
the children. Irish Times, July 10.
United Kingdom — Prime Minister Tony
Blair has decided to appoint Rowan Williams,
head of the Anglican Church in Wales, to be the
104th Archbishop of Canterbury, thus following
the recommendation of the Crown appointments commission. Press reports anticipating
Williams’ appointment commented on his generally pro-gay views, which caused no lack of
consternation among conservatives, as the
Archbishop of Canterbury is the ritual head of
the nation’s established church. The Guardian,
July 10. A.S.L.
Professional Notes
Out lesbian former prosecutor Florence Finkle
has been promoted to become director of the
New York City Civilian Complaint Review
Board. She has headed the CCRB’s investigative unit since 1996, and was previously an assistant district attorney in Manhattan. In 1998,
she was the subject of an article in Glamour
magazine about her process of coming out to
herself. New York Daily News, July 10.
Openly gay U.S. Rep. Barney Frank is the
subject of a new documentary film by Bart Everly, titled “Let’s Get Frank.” Frank is a Harvard Law graduate who is a prominent leader
among Democratic liberals in the House. In the
film, he recalls then-Speaker Tip O’Neill’s reaction to Frank’s announcement about his homosexuality. Tip said to Barney, “I’m sorry to
hear that. I thought you were going to be the first
Jewish speaker.” Then Tip told his staff, “We
better get ready. Barney Frank is going to come
out of the room.” Boston Herald, June 17. The
film is expected to be screened for the first time
this summer or fall. A.S.L.
Lesbian/Gay Law Notes
Summer 2002
123
AIDS & RELATED LEGAL NOTES
Supreme Court Again Narrows ADA; Supports
EEOC Reg Allowing Exclusion of Persons From
the Workplace For Their Own Protection
The U.S. Supreme Court has narrowed the protections provided under the Americans with
Disabilities Act (ADA), ruling unanimously
that under a regulation promulgated by the
Equal Employment Opportunity Commission,
the ADA does not require employers to hire
people whose own health or safety would be put
at risk by the job. Chevron U.S.A., Inc. v.
Echazabal, 2002 WL 1270586 (June 10). Reversing a decision by the 9th Circuit Court of
Appeals, the Supreme Court concluded that the
EEOC did not exceed its rulemaking authority
when it adopted the regulation at issue (29
C.F.R. secs. 1630.15(b)(2)), even though the
ADA on its face only permits employers to refuse to hire individuals who would pose a direct
threat to others in the workplace.
Mario Echazabal worked for independent
contractors at one of Chevron’s oil refineries
since 1972. Twice, he applied for a job directly
with Chevron and was turned down, due to a
liver condition (eventually identified as Hepatitis C) which Chevron’s doctors said would be
exacerbated by continued exposure to toxins at
Chevron’s refinery. Chevron ultimately asked
Echazabal’s employer either to reassign him to
a job that did not expose him to harmful chemicals, or to simply remove him from the refinery.
Echazabal’s employer opted for the latter option, and laid him off in 1996.
Echazabal filed suit against Chevron under
the ADA. Chevron alleged that its conduct was
proper and not subject to liability under the
ADA, since Echazabal’s liver condition posed a
direct threat to him if he continued his work at
the refinery. Although two medical witnesses
disputed Chevron’s assessment of Echazabal’s
medical condition (and the effect that future
work at the refinery would have on his health),
the District Court granted summary judgment
to Chevron. On appeal, the Ninth Circuit reversed, finding that the EEOC exceeded its
rulemaking authority when it adopted the
“threat-to-self” regulation.
Echazabal’s principal argument to the high
court was based on the rule of statutory construction expressio unius exclusio alterius: that
by including in the ADA a provision allowing
employers to refuse jobs to those who would
pose a direct threat to others, Congress meant to
prevent employers from refusing jobs to individuals who pose a threat to themselves only.
Writing on behalf of the Court, Justice Souter
rejected this argument first and foremost based
on the language of the ADA itself, which mentions the “threat to others” exception as only
one of any possible number of “qualification
standards” that may be relied upon by employers to deny jobs to applicants with disabilities.
Souter also took the position that Echazabal’s
position proved too much, asking: “When Congress specified threats to others in the workplace, for example, could it possibly have
meant that an employer could not defend a refusal to hire when a worker’s disability would
threaten others outside the workplace? If Typhoid Mary had come under the ADA, would a
meat packer have been defenseless if Mary had
sued after being turned away? Expressio Unius
just fails to work here.”
Chevron alleged that the EEOC’s regulation
was reasonable for reasons the Court called
“unsurprising,” including the wish to avoid
time lost to sickness, excessive turnover from
medical retirement or death, and litigation under state tort law. While the Court did not discuss these issues at any length, it did give decisive weight to Chevron’s fear that by hiring
Echazabal, it could be found to violate the Occupational Safety and Health Act of 1970, a
federal law requiring employers to ensure the
general safety of their workers. “Although there
may be an open question whether an employer
would actually be liable under OSHA for hiring
an individual who knowingly consented to the
particular dangers the job would pose to him [or
her],” Souter wrote, “there is no denying that
the employer would have asking for trouble.”
Perhaps anticipating criticism from disability advocates, Souter denied that the EEOC
regulation allows “the kind of workplace paternalism that the ADA was meant to outlaw.” According to the Court, the ADA meant only to
protect persons with disabilities from decisions
based on “untested and pretextual stereotypes.” Souter emphasized that the EEOC
regulation, by contrast, requires there to be
“particularized enquiry into the harms the employee would probably face” and that the direct
threat defense must be “based on a reasonable
medical judgment that relies on the most current medical knowledge and/or the best available objective evidence.”
Echazabal was represented by Samuel R.
Bagenstos. Chevron was represented by Stephen M. Shapiro. Ian Chesir-Teran [Editor’s
Note: The potential effect of this decision on
people with HIV who wish to continue working
could be significant, if employers succeed in
enlisting medical professionals to opine that
particular people with HIV could be harmed by
exposure to something in the employer’s workplace. A.S.L.]
California Appeal Court Refuses to Block
Extradition of Middle-Aged HIV+ Man to
Georgia for Teen Offense
Rejecting an argument that sending him into
the Georgia prison system would violate the
constitutional ban on cruel and unusual punishment, the California Court of Appeal, 2nd
District, denied a petition for a writ of habeas
corpus filed by Timothy Walton, a middle-aged
man with HIV who is wanted by the State of
Georgia for escaping from a Georgia prison in
1973 while serving a 7–year sentence for a robbery committed when he was 19. In re Timothy
Walton, 2002 WL 1376021 (June 26, 2002).
Walton escaped as part of a general breakout
by about two dozen inmates, when he had
served six months of his sentence. He made his
way to California, where he has lived ever
since, having married, had and raised children,
and is now a grandfather, described by the court
as “afflicted with AIDS.” Walton has not exactly led an exemplary life in California, having
had several brushes with the law. Shortly after
his arrival there, in June 1975, he was arrested
on a domestic violence charge originating from
what Walton characterizes as a “domestic
squabble.” He was kept in custody on a “fugitive hold” from the Georgia Department of Correction, which requested extradition, and Governor Gerry Brown had approved the request,
but while Brown was out-of-state, Lt. Gov.
Mervyn Dymally, acting as governor, withdrew
the authorization for extradition, noting that
Walton was “young…, about to be married,”
and expressing “concern for Mr. Walton’s
safety” in the Georgia prison system.
Although Walton came to the attention of the
police in California several times over the following decades, Georgia authorities, when contacted, didn’t seek extradition, having been rebuffed once. But then, after he was arrested for
operating a bicycle after dark without a light,
Georgia officials decided to try again and, after
reviewing the case, Gov. Gray Davis decided to
authorize the extradition, even though Walton
claimed that his current health condition would
present particular dangers in light of the Georgia prison system’s notorious reputation when it
comes to AIDS treatment.
Having failed to impress the governor, Walton filed his writ and managed to impress the
L.A. County Superior Court with his doctor’s
medical testimony that the transportation to
Georgia and incarceration there, with consequent interference with his treatment, could
significantly reduce his life span.
However, in an opinion by Judge Woods, the
court of appeal concluded that Georgia is entitled to the extradition of a fugitive, and Walton’s
evidence, while moving, was misdirected, be-
124
cause once the governor had approved the request for extradition, the court’s role on a petition for a writ of habeas corpus was limited to
four issues: whether the extradition documents
were facially proper, whether the petitioner was
charged with a crime in the demanding state,
whether there is no mistaken identity issue, and
whether the petitioner is actually a fugitive
from justice. All four of these questions are uncontested in Walton’s case. In the course of a
lengthy discussion of the modern history of extradition law, the court noted that when Acting
Gov. Dymally had blocked Walton’s extradition
in the mid–1970s, the law was otherwise, but
subsequent U.S. Supreme Court precedents
had sharply circumscribed the ability of a state
to refuse to comply with a valid extradition request from another state.
“The status of Walton’s health simply is not
relevant to the right of the State of Georgia to
demand his extradition,” wrote Woods, who
said that really the only relevant arguments
raised by Walton were that Georgia had effectively waived its right to demand extradition by
its past actions in not following up and seeking
extradition several times over the years when
contacted by California law enforcement
authorities about Walton’s continued arrests.
Woods noted that California courts have not
been receptive to such arguments, however.
The decision drew a long, detailed dissent
from Judge Johnson, claiming that “this is one
of those extraordinarily rare instances where a
state’s behavior in the extradition process —
involving undue delay, earlier ignored opportunities to pursue extradition, and an express
waiver — violated petitioner’s due process
rights to fundamental fairness.” In essence,
Johnson claimed that when Georgia officials
had repeatedly rejected attempts to pursue extradition, and had, in writing, specifically
waived that right on prior occasions, it was fundamentally unfair to somebody who had been
living in California for 30 years to suddenly
send him to a Georgia prison.
However, even Judge Johnson agreed with
the majority that Walton’s health arguments did
not pose a constitutional barrier to his extradition. “Harsh as it may seem,” wrote Johnson,
“California courts have no reason to even inquire into the truth of these claims… It is the
courts of the demanding state — and only those
courts — which have jurisdiction to consider
any constitutional or legal claims the prisoner
may suffer illness, injury or death if extradited
to that state. Accordingly, petitioner Walton’s
Eighth Amendment claims must be addressed
to the Georgia courts.” On the other hand,
Johnson argued that this did not mean that
“Walton’s present precarious health condition
cannot enter into the due process equation
when considering whether Georgia’s conduct in
the extradition process this past quarter century has created an egregious situation where to
Summer 2002
grant that state’s current request would deny
Walton his due process right to ‘fundamental
fairness’ under the U.S. Constitution." Johnson
would resolve this 14th Amendment issue
against Georgia. A.S.L.
PWA Wins Reversal of Summary Judgment on
Disability Discrimination Claim
Michael Marshall worked for Floral Telephone
Services, a florist, continuously for a year, but
arrived late every Tuesday, the day he had AIDS
treatments. Marshall v. Floral Telephone Servs.,
Inc., 2002 WL 1376231 (Cal. App. 2d Dist.
June 26, 2002). The arrangement was approved by his employer/supervisor, Lou Cohen.
The treatments caused a painful medical
condition in Marshall’s right foot and leg, making it difficult for him to stand for extended periods. He was too ill to work during the busiest
time of year (from Secretary’s Day in April to
Mother’s Day in May), and had to undergo surgery in May. Cohen told him that his job would
be waiting for him when he wanted to return,
and Marshall did return in late May, asking for
accommodations based on his illness-related
disability. The accommodations would have
entailed a shortened work schedule and limiting his assignments to those not requiring
strenuous activity. Cohen refused to make accommodations and terminated Marshall. According to Marshall, Cohen called Marshall a
troublemaker (he had complained to the state
labor department about the lack of overtime
pay) and said that the person who replaced him
was faster and cheaper.
Marshall filed complaints against Floral, alleging disability discrimination and retaliatory
firing. Floral asked for and received summary
judgment, the trial court finding that Marshall
could not establish a prima facie case: (1) because Marshall’s disability did not limit his
ability to perform a major life function, which is
a requirement for finding disability discrimination; and (2) Floral needed to hire someone permanent to replace Marshall because the volume of business in April and May make it
essential to have an employee who can handle
all aspects of the job.
The appellate court reversed the trial court,
finding triable issues of fact as to whether Marshall suffered a disability and whether Floral’s
reasons for hiring a replacement for Marshall
were a pretext for unlawful discrimination.
The court found that standing on one’s feet is
a major life activity, citing 29 C.F.R. secs.
1630.2(i). Whether Marshall’s illness is the
cause of his inability to stand is an issue for a
trier of fact; therefore, the appeals court reversed the trial court on that issue.
The appellate court also found that whether
Floral had a legitimate reason to discharge
Marshall, or whether the stated reason was a
pretext, is also an issue for trial. Pretext, said
Lesbian/Gay Law Notes
the court, may be inferred from (a) the timing of
a discharge decision, (b) the identity of the
decision-maker, or (c) the discharged employee’s job performance before termination. Pretext may be demonstrated by showing that the
proffered reason (a) had no basis in fact, (b) did
not actually motivate the discharge, or (c) was
insufficient to motivate the discharge. One fact
that the court found significant was that Floral
often had hired temporary workers in the past,
especially to handle the April-May crunch. In
addition, the timing of the termination might
suggest that it was based upon Marshall’s disability and not on any undue hardship that Floral would have suffered.
Although the appellate court upheld the trial
court’s dismissal of the retaliation charge, it reversed the decision regarding disability discrimination, finding significant issues that a
trier of fact is best suited to decide. Alan J. Jacobs
Lack of HIV+ Defendant’s “Regard for Human
Life” Justified Consecutive Sentences
A Tennessee appellate panel affirmed the conviction and consecutive sentences of a
24–year-old parolee who, knowing that he was
HIV+ and that his sex partner was only 14
years old, had unprotected sex with her. He did
not reveal his HIV status, although he had
known of his status for several years. State of
Tennessee v. Harvey, 2002 WL 1162346 (Tenn.
Crim. App. May 31, 2002).
Michael Harvey appealed his conviction
both on the sufficiency of the evidence, and on
the excessiveness of consecutive sentences totaling 20 years (in addition to two consecutive
sentences from which he was then on parole).
The court had little trouble affirming the jury’s
determination that the sole testifying witness to
the event, the victim, was more credible than
Harvey (testifying in his own behalf), his
brother, and their mother, whose testimony
placed Harvey elsewhere. The conviction was
upheld.
In allowing consecutive sentences for the two
counts arising from the statutory rape, the opinion for the court by Judge John Everett Williams referred to Tennessee’s sentencing guidelines, Tenn. Code secs. 40–35–115(b)(1) to (7).
The guidelines state that sentences may run
consecutively if “the defendant is a dangerous
offender whose behavior indicates little or no
regard for human life, and no hesitation about
committing a crime in which the risk to human
life is high.” Harvey fit this description, stated
Williams, and deserved to receive a sentence of
six years for the Class E felony of statutory rape,
Tenn. Code sec. 39–13–506, followed by a
14–year sentence for the Class C felony of
criminal exposure to HIV. Tenn. Code. sec.
39–13–109. Another aggravating circumstance — that Harvey was a past offender then
Lesbian/Gay Law Notes
on parole — also justified the consecutive sentences, to be served after he had served consecutive sentences for his prior conviction.
Alan J. Jacobs
Requested HIV Test After Needle-Stick Injury Does
Not Violate ADA
The question before the federal district court in
Kressler v. Four Winds Hospital, 2002 WL
1300057 (S.D.N.Y. June 11) was whether a private psychiatric hospital employee who was
terminated for refusing to take an HIV test after
a work-related needle stick injury stated a
cause of action under the Americans with Disabilities Act (“ADA”).
The needle stick injury occurred as the employee, a mental health worker named Daniel
Kessler, was attempting to assist a nurse in administering medication to a 10–year-old patient. Kessler was stuck with the needle before
the patient got the injection. The hospital
wanted the test done in order to assess the risk
of exposure to HIV and thus avoid the need for
prophylactic treatment.
District Judge Harold Baer, Jr., granted the
hospital’s motion to dismiss, ruling that in requesting that Kessler take the test, the hospital
did not treat him as if he had a disability or impairment within the meaning of the ADA.
Kessler did not make this required allegation in
his complaint, and it could not be inferred from
the circumstances. While Kessler argued that
the request for the test necessarily gave rise to a
cause of action under ADA, the court ruled otherwise, stating that only those medical inquiries that did not serve a legitimate business purpose were barred under the ADA. In this case,
the test was requested so that the health of a patient could be protected. This would certainly
fall within the hospital’s legitimate business
needs, according to the court. Steven Kolodny
Dallas Court Recognizes “Great Lengths” of VA
Care for Terminal AIDS Patient
The U.S. District Court for the Northern District
of Texas, Dallas Division, deciding a malpractice case brought on behalf of a deceased AIDS
patient against the Veterans Administration
Hospital and Nursing Home in Dallas, concluded sympathetically that while plaintiffs
were unquestionably sincere, “it [is] not uncommon for family members to have higher expectations [than] an objective person would
have in situations concerning the quality of
care of their loved ones.” Naab v. United States,
2002 WL 1268032 (N.D. Tex., May 31, 2002).
In 1993, VA doctors diagnosed the disease
PML in AIDS patient Edwin Armijo, giving him
an accurate prognosis of at most two months to
live. Armijo received about twenty-three days
of hospice care in the VA home, returning to the
hospital about two weeks before his death.
Summer 2002
While he was at home, Armijo’s wife (ArmijoNaab) and children actively assisted in his
care. Naab complained that VA nursing staff
failed to properly feed and medicate Armijo,
and to clean Armijo and his room. A representative of the AIDS Interfaith Network described
Armijo’s room as being dirty and cluttered, and
told staff that Armijo was developing bed sores.
Each of these factual allegations were refuted. Nursing home records and staff testimony indicate that, while Armijo’s room appeared cluttered due to such equipment as a
walker and wheelchair, the room was cleaned
and Armijo was bathed frequently. The family’s
complaints about cleanliness, bed sores, nutrition and medication were promptly investigated by the relevant specialists. Although no
bed sores were found at the time or at autopsy,
Armijo was placed on a special mattress and
turned every two hours. In light of eating difficulty common to advanced AIDS, Armijo received a feeding tube.
Judge Lindsay examined photographs offered by the plaintiffs and their emotional demeanor and reasoned that the latter “did not
permit them to assess the evidence in an objective manner.” Noting that plaintiffs could not
contend that the alleged inadequate care
caused Armijo’s death, and that they stated no
clear-cut theory of recovery, Judge Lindsay
treated theirs as a case for loss of spousal and
parental consortium. Finding conclusive evidence that the quality of the nursing delivered
to Armijo met the requisite standard of care,
without any evidence of “mass conspiracy on
the part of the medical personnel70 to lie, the
judge assessed litigation costs against plaintiffs. Mark Major
AIDS Litigation Notes
Federal — Puerto Rico — Pubill-Rivera v. Curet, 2002 WL 1414089 (U.S.Dist.Ct., D.P.R.,
May 31 2002), is one of those decisions about
which one shakes one’s head and questions
whether judges are either too well or not well
enough versed in their Dickens. The suit was
brought by Maritza Pubill-Rivera, whose son,
Amaury, died from AIDS at age 22 while incarcerated in Bayamon Regional Jail. His death
was quick, painful, and unnecessary, to judge
by the pleadings, occurring primarily because
prison officials exhibited no sense of urgency
whatsoever about providing medical services to
people with HIV-related symptoms who test
positive. He sought medical services in the jail
on July 31, 1996, presenting with AIDS-like
symptoms, and was “tested” (for what is unclear from the opinion) and sent back to his
cell. No follow-up or treatment was provided at
that time. On October 31, he tested positive for
HIV and was sent back to his cell, with no
follow-up or special treatment. His symptoms
having intensified to severe pain, diarrhea,
125
vomiting and loss of appetite, he again sought
medical care on November 30, and the attending physician described him as being “acutely”
sick with AIDS. Finally (but too late), he was
given some medications and admitted to a regional hospital, where he died a few days later.
Maritza sought to hold prison health officials liable under the 8th Amendment for cruel and
unusual punishment, suing in federal court under 42 USC 1983, alleging that there was a systemic failure and deliberate indifference to the
medical needs of prisoners with HIV such as
her son. Granting the defendants’ motion to dismiss (!), District Judge Garcia-Gregory treated
Maritza’s allegations as falling short of the constitutional standard, amounting merely to potential negligence claims which would not satisfy the “deliberate indifference” standard.
Reading this opinion, one feels like saying
things about the judge that are not printable in
this kind of publication. That the notorious
shortcomings of Puerto Rican jails in dealing
with AIDS do not give rise to liability of the responsible officials is shocking. The court’s attempt to dispose of the case as a matter of
pleading deficiencies is heartless.
Federal — Florida — A sailor who was denied employment when he tested HIV+ had no
claim under the ADA or legal principles governing employer responsibility for injuries to
sailors (so-called “maintenance and cure”),
according to a decision by District Judge Hoeveler in Thomas v. New Commodore Cruise Lines
Limited, Inc., 202 F. Supp. 2d 1356 (S.D. Fla.,
May 22, 2002). Ian Thomas made a contract to
work on the steamship Enchanted Capri for defendant cruise line, which was contingent on
passing a pre-employment physical including
an HIV test. Thomas reported for duty, but an
officer discovered he hadn’t been tested and he
was sent to the Marine Medical Unit in New Orleans, where he tested HIV+. Thomas applied
for maintenance and cure and was turned
down, then filed this suit. The court held that
there was a well-known exception to the right of
maintenance and cure for venereal diseases.
Thomas argued that enactment of the ADA had
displaced this exception, because HIV is a disability. The court responded that HIV is not a
per se disability, and there was no indication
Congress intended to displace the normal rules
of maintenance and cure in the case of venereal
diseases. Even if a non-discrimination requirement arose from the ADA, the court found no
discrimination here, in that HIV was treated the
same as any other venereal disease as a disqualification. Further, Thomas was unable to
show how he had become infected, which might
be relevant if he was infected in the course of
performing shipboard duties. He speculated either that a “condom broke” or that he might
have suffered a puncture wound with an infected needle, but he could not specify either
such incident as having actually happened.
126
The court granted summary judgment to the
employer.
Maine — Steven DesRochers, a
wheelchair-bound HIV+ hospice resident who
needed hip replacement surgery was turned
down for services by Dr. Paul Kamins, an orthopedic surgeon in Belfast, Maine. DesRochers
complained to the state human rights commission, which ruled 3–1 on June 17 that Kamins
had violated state law banning public accommodations discrimination against persons with
disabilities. In response to the discrimination
charge, Kamins came up with several nondiscriminatory reasons for refusing to perform
the operation, but they were determined by a
majority of the commission to be after-the-fact
rationalizations, overshadowed by Kamins’
comment at the time to a nurse from the hospice
that performing the procedure for DesRochers
would put his surgical team “at risk” and that
he had a family to consider. Portland Press Herald, June 18.
Maryland — In a lengthy opinion, the Maryland Court of Special Appeals found that the
state’s consumer Protection Division was justified in going after Neal Deoul, a lawyer and cofounder of a company called T-Up, Inc., which
was formed to market a product made up of concentrated aloe vera extract and cesium chloride
as a cure-all for immune system problems.
Among other things, this snake-oil operation
claimed that their product was an effective
treatment for AIDS, as well as a wide variety of
other diseases. This product was never subjected to testing or submitted for licensing to
the FDA. When federal and state regulators
went after T-Up and its operators, they concluded that consumer fraud laws and federal
drug regulations had been violated by the company, which marketed its product through direct mail using purchased mailing lists with
hundreds of thousands of names, and a lengthy
proceeding resulted in orders to cease business
and imposed significant civil fines on the individuals involved, who then sought judicial review. The fines were calculated based on the
number of gullible people who actually purchased the product in response to the direct
mail campaign. In T-Up, Inc. v. Consumer Protection Division, 2002 WL 1377794 (June 26,
2002), the court upheld the orders against the
company and its co-founders and operators.
Amazing what people think they can get away
with.
Missouri — In State of Missouri v. Moss, 2002
WL 1326053 (Mo. Ct. App., E.D., Div. 2, June
18, 2002), the court upheld the conviction of
Marshall Moss for “recklessly exposing his
former girlfriend to HIV without her knowledge
and consent through unprotected sex.” Evidently, the girlfriend was not infected, as the
sentence imposed was five years, suspended, a
similar period of probation, and a $5,000 fine.
Quoth the court per curiam: “No jurispruden-
Summer 2002
tial purpose would be served by a written opinion reciting the detailed facts and restating the
principles of law.” The parties were presented
with an unpublished memorandum opinion
“for their information only.”
Louisiana — She had to know it was too good
to be true. On September 26, 2001, Honorable
Piper Griffin of the Orleans Parish Civil District
Court awarded Marie Cornish, an unemployed
grandmother of two, age 40, damages totaling
$2.5 million in her negligence suit against Doctors Care LLC, a health clinic, for a delay of a
few months in notifying her of an HIV+ test result. On June 12, 2002, the Court of Appeal of
Louisiana, 4th Cir., vacated the judgment,
which had been rendered on the defendant’s
default, and remanded back to the trial court.
Cornish v. Doctors Care, LLC, 2002 WL
1335244. Cornish testified at the default hearing that she went in for testing early in April
2001, but was not notified of her HIV+ result
until late in July, and that this delay had so
compromised her future health status as to have
reduced her predicted life span from 24 more
years to one year. She provided no expert medical testimony for the contention that more
prompt treatment would have prevented her
from developing AIDS. In an opinion by Judge
Miriam G. Waltzer, the court determined that a
default judgment could not be rendered on the
basis of this evidence, because there was no
prima facie case for negligence liability, which
includes present probative evidence that a
breach of duty by the defendant actually
caused an injury to the plaintiff. The court
found nothing in the record to support a conclusion that a delay of a few months in commencing treatment for HIV infection would have
more likely than not produced such a drastic
diminution of Ms. Cornish’s life span. (From the
court’s account of the evidence, it appears that
what happened was that when Ms. Cornish’s
test came in positive, the defendant sent the
sample out to a different lab for a confirmatory
test, and held up contacting her until the confirmation had come in.)
New York — N.Y. Supreme Court Justice
Alan D. Oshrin has ruled that a massive jury
verdict given to a woman whose picture was
used in a drug company’s brochure for HIVrelated medications must be set aside and the
case retried unless she will accept a significantly smaller amount of damages. Doe v. Merck
& Co., NYLJ, 6/3/2002 (N.Y. Sup. Ct., Suffolk
County). The jury had awarded $2 million in
punitive damages and $1 million in compensatory damages. Justice Oshrin found that the
trial record would not support an award for punitive damages, as it appeared that the defendant thought it had permission for the publication and the problem may have been
miscommunication rather than a wilful flouting
of the plaintiff’s privacy rights. Furthermore,
the court found $1 million excessive, and of-
Lesbian/Gay Law Notes
fered Doe $650,000 as damages if she did not
wish to relitigate the case before a new jury. Doe
had given Merck permission to take and use her
picture in what she thought was a brochure for
users of Crixivan, an HIV drug, but later discovered that the picture had been used in a general advertising brochure and that a caption
had falsely described her as an unmarried
19–year-old mother of two who suffered from
both HIV and herpes, due to sexual promiscuity. Liability had been determined in this case
on a summary judgment motion before a different judge, and then the case went to Oshrin for
trial of the damage claim. “The conduct discussed is not so flagrant as to transcend mere
carelessness,” wrote Oshrin. “Punitive damages may not be awarded in a case where there
is only negligence or poor judgment on the part
of the defendant.” Here, while the defendant
knew that the plaintiff had not specifically approved the language of the caption or the placement of the picture, its actions were at worst
negligent under the circumstances, with no intention to cause injury to the plaintiff. The reduction of compensatory damages was premised on testimony by a defense expert disputing
the degree of emotional distress suffered by
Doe.
South Carolina — In Ex Parte The Department of Health and Environmental Control;
State v. Doe, 2002 WL 1306166 (June 17,
2002), the Carolina Supreme Court unanimously ruled that a state health department
record of an individual’s HIV test result was admissible in a criminal prosecution of the individual for knowingly exposing a victim, in this
case a minor, to HIV. When the John Doe defendant was prosecuted, the state sought from the
Health Department Doe’s HIV test record, information about chain of custody of the test results, and information about any HIV counseling Doe had, in order to establish that he knew
about his HIV status at the time he was accused
of violating the state’s HIV law. The health department resisted these requests, and the state
filed a motion to compel production of evidence. The circuit court ordered that all this information be revealed, but the court of appeals
refused to order disclosure of counseling records. The Supreme Court found that there was
no need for chain of custody information, because the test record could be admitted as a
business record, but the court concluded that
the counseling records should be disclosed to
assist the state in proving Doe’s knowledge. “In
our opinion,” wrote Chief Justice Toal, “any
DHEC counseling records pertaining to Doe’s
notification of his HIV status are relevant to
proving Doe’s requisite knowledge, and, therefore, are admissible. The procedure in section
44–29–136(A) governs when and to whom this
information can be released and provides appropriate safeguards for release of this information which were adhered to in this case.”
Lesbian/Gay Law Notes
Pennsylvania — A state trial court in Corry,
Pa., sentenced James Willison, 37, to 8–16
years in prison for having unprotected sex with
two teenage girls and soliciting sex from a third,
without disclosing that he was HIV+. He had
also pled guilty to corruption of minors charges
for giving alcohol to yet another girl and asking
her to perform oral sex. Charleston Gazette, July
5. A.S.L.
AIDS Policy & Society Notes
Dr. Julie Geberding, well known for her work on
HIV infection as well as the recent anthrax
scares, was appointed to be director of the U.S.
Centers for Disease Control and Prevention by
Health & Human Services Secretary Tommy
Thompson on July 3. In comments to the press,
Geberding said, “I want to state very clearly
that my essential goal is to substantially reduce
and ultimately prevent HIV infection.” American Political network; American Health Line,
July 5.
Pennsylvania’s Independent Regulatory Review Commission voted 4–1 on June 13 to require health care providers to report to the state
the names of people infected with HIV. The
state Department of Health already has namereporting for 52 other diseases, including tuberculosis and full-blown, diagnosed AIDS,
and had been arguing that it needed to know
about HIV infection in order to track the epidemic and know where to focus attention. The
panel rejected attempts by AIDS activists to
substitute a coded system for name-reporting,
responding to the department’s argument that
only with name reporting could it be sure it was
getting accurate data and helping those who are
in need of services. Philadelphia Inquirer, June
14.
The New York Times reported on June 21 that
GlaxoSmithKline, manufacturer of many
widely-used HIV drugs, had decided to freeze
the prices charges for six of its AIDS drugs in
the U.S. until at least January 2004. This follows Pfizer’s announcement that it would freeze
the price of two of its AIDS drugs for the next
two years. A Glaxo executive pointed out that
many people get these medications through
state-funded programs, and many states had reported budget crunches as the number of people with HIV kept increasing and new medications kept people alive and healthy much
longer.
In a speech to business leaders with overseas
interests, U.S. Secretary of State Colin Powell,
who also co-chairs the presidential task force
on AIDS, said that U.S. companies with overseas operations should not discriminate against
people living with HIV in their overseas employment policies. “They are just like anyone
else,” said Powell. “They need our help. They
need our compassion. They need to be given the
opportunity to be contributing members of soci-
Summer 2002
ety… I strongly encourage the CEOs that are
here today to develop AIDS policies suitable for
the countries in which your companies operate.” Powell also encouraged mandatory HIV
training programs within companies, and said
that “there should be no stigmatization of persons with the HIV virus.” Deseret News, June
25. A.S.L.
AIDS International Notes
Barcelona, Spain — The 14th International
AIDS Conference, held in Barcelona during
July, produced the usual flood of headlines as
researchers announced the results of new studies and international and national bodies released new data about the progress of the epidemic and efforts to contain it. Among the
leading stories was a startling study showing
that 70% of HIV+ gay men may be unaware of
their HIV-status a blatant failure for current
testing protocols in the U.S., since most effective behavior modification to prevent HIV’s
further sexual transmission is reliant on individuals knowing their HIV status. Another
study, emanating from Boston, suggested that
developing a vaccine for HIV would be particularly complicated due to the emergence of many
different strains of the virus; the study focused
on an HIV-infected man whose body had been
mounting a successful immune defense to his
original infection but then was profoundly defeated when the man had unprotected sex and
was infected by a different strain. One study
showed that the average life expectancy in 11
African countries will drop below age 40 by
2010 if there is not some radical intervention to
curb the spread of HIV. International bodies
warned about a massive increase in the number
of AIDS orphans, especially in Africa, and U.S.
Secretary of Health and Human Services
Tommy Thompson encountered disruptive
demonstrations during his scheduled speech,
amid charges that the U.S.’s announced contribution to a world AIDS fund was much too small
to make a dent in the rapidly growing epidemic
in Africa and Asia. Former U.S. President Bill
Clinton, speaking on a panel of political leaders, announced regret that he did not do more as
president to deal with HIV transmission issues,
including needle-exchange programs, which
had been effectively vetoed at the behest of
Clinton’s drug war czar, Gen. Barry McCaffrey.
Clinton now acknowledges studies showing
that needle exchange programs do not lead to
increased illicit drug use. Both China and the
Soviet Union were subjected to severe criticism
for failing to respond effectively to the epidemics in their countries. World bodies predicted
that in the absence of massive increases in
funding for prevention work, the epidemic
would get exponentially worse over the next
decade, and some commented that even though
the epidemic now goes back over two decades,
127
we are still at the “beginning” of the world HIV
epidemic. So far, there is no sign of the virus
having reached saturation and a plateau in any
major population, and there are signs in the
U.S. that combination therapy may lose its effect over time due to developed resistance and
evolving strains of HIV. However, there were
also announcements of some new drugs emerging to keep long-term survivors another step
ahead of viral resistance.
International — The Wall Street Journal reported June 26 that the U.S. government and
the European commission had agreed on a set
of proposals to the World Trade Organization to
support poor countries that are seeking generic
HIV medications from Indian and Brazilian
companies that are ignoring first world patent
protections. This was characterized as a major
breakthrough, as in the past some government
leaders, including former V.P. Al Gore, had
taken steps to try to protect the rights of U.S.
pharmaceutical patent holders against such efforts. ••• On June 19, U.S. President George
W. Bush announced that $500 million would be
donated by the U.S. government to efforts to
prevent HIV transmission from expectant
mothers to babies in Africa and the Caribbean.
New York Times News Service, June 20.
South Africa — Affirming a lower court ruling, South Africa’s constitutional court ordered
the government on July 5 to provide nevirapine
to HIV+ pregnant women at public health care
facilities. The government had been resistant,
at first due to President MBeki’s doubts about
HIV being the cause of AIDS, but more recently
due to arguments that the infrastructure for administering the drug effectively on a large scale
did not yet exist. The court ruled that further
delay violated the Bill of Rights. “We do not underestimate the nature and extent of the problem facing government in its fight to combat
HIV/AIDS and, in particular, to reduce the
transmission of HIV from mother to child,”
wrote the court, which also acknowledged the
need to proceed cautiously with new medications, “but the nature of the problem is such
that it demands urgent attention.” The Health
Minister insisted that the decision did no more
than echo the government’s internal decision,
taking in April, to expand the nevirapine program throughout the country. Associated Press,
July 6.
China — China Post reported on June 19
that police authorities in Taipi are attempting to
remove four policemen who have tested HIV+
from the force. Family members of the police officers complained to the paper about harassment directed at the officers and their families
to pressure them to quit their jobs. China has no
law protecting employment rights of HIV+ individuals.
France — A French appeals court shocked
many observers by dismissing charges against
30 defendants who were expected to stand trial
128
shortly for their alleged roles in an HIV-tainted
blood scandal a decade ago that resulted in the
unnecessary infection of thousands of people,
of whom several hundreds have already died.
Most of the victims were hemophiliacs who
contracted HIV through blood-product medications, made with blood that public officials
allegedly knew could be tainted but did not discard. The Independent - London, July 5.
Great Britain — The British Medical Journal
reported that the number of HIV cases in the
United Kingdom almost doubled since 1995,
and that by the end of 2003, it is expected to
Summer 2002
rise from the current count of 30,000 to about
39,000. Also, while infection from gay sex or
shared needles is down over the past decade in
the U.K., heterosexual sexual transmission
cases are up 48 percent in that period. London
Evening Standard, May 31. ••• Vito Calabrese, an HIV+ waiter at the Shadow Lounge
Club in Brewer Street, London, has been sentenced to two years in prison for biting a woman
on the dance floor of the club. Calabrese
pleaded guilty to the charge of wounding, and
the judge justified the sentence by reference to
“the anxiety suffered by that woman.” Judge
Lesbian/Gay Law Notes
David Paget told the defendant before sentencing: “It is a totally bizarre offence and the only
explanation you gave was that you were under
the influence of drink or drugs.” London Evening Standard, June 28.
Canada — A trial court in Kitchener imposed a 10 year prison sentence on Edgard
Monge, a Nicaraguan native, who was convicted of having unprotected sex with four
women without informing them of his HIV
status. Two of the women were infected, as well
as a baby born to one of them. National Post,
June 28. A.S.L.
PUBLICATIONS NOTED & ANNOUNCEMENTS
LESBIAN & GAY & RELATED LEGAL ISSUES:
Baime, Major Eugene E., Private Consensual
Sodomy Should Be Constitutionally Protected
in the Military by the right to Privacy, 171 Military L. Rev. 91 (March 2002) (someone talk to
this man’s career counselor).
Beiner, Theresa M., Let the Jury Decide: The
Gap Between What Judges and Reasonable People Believe is Sexually Harassing, 75 Southern
Cal. L. Rev. 791 (May 2002).
Brinig, Margaret F., Domestic Partnership:
Missing the Target?, 4 J. L. & Fam. Studies 19
(2002) (from right-wing perspective).
Brody, Evelyn, Entrance, Voice, and Exit:
The Constitutional Bounds of the Right of Association, 35 U.C. Davis L. Rev. 821 (April
2002).
Buss, Emily, “Parental” Rights, Virginia L.
Rev. 635 (May 2002).
Butler, Judith, Is Kinship Always Already
Heterosexual?, 13 Differences 14 (2002).
Calvert, Clay, and Robert D. Richards, Free
Speech and the Right to Offend: Old Wars, New
Battles, Different Media, 18 Georgia State U. L.
Rev. 671 (Spring 2002).
Calvert, Clay, Regulating Sexual Images on
the Web: Last Call for Miller Time, but New Issues Remain Untapped, 23 Hastings Comm. &
Ent. L. J. 507 (Spring 2001).
Coolidge, David Orgon, Widening the Lens:
Chapter 6 of the ALI Principles, Hawaii and
Vermont, 4 J. L. & Fam. Studies 79 (2002) (from
right-wing perspective).
Duncan, William C., The Legacy of Romer v.
Evans So Far, 10 Widener J. Pub. L. 161
(2001).
Elrod, Linda D., and Robert G. Spector, A Review of the Year in Family Law: State Courts React to Troxel, 35 Fam. L. Q. 577 (Winter 2002).
Felder, Myrna, Who May Adopt A Child? ‘In
re Adoption of Emilio R.’, NY Law Journal, June
10, 2002, p.3 (thoughtful review of New York
case law on adoption, including adoption by
gay co-parents; title case involved 1st Dept. decision allowing an unmarried heterosexual couple to adopt jointly; author calls for legislature
to revise NY adoption laws so as to reflect the
reality of new decisions and family structures).
Hacking, Ian, How “Natural” are “Kinds” of
Sexual Orientation?, 21 L. & Philosophy 335
(May 2002).
Haggerty, Bernard P., Hate Crimes: A View
from Laramie, Wyoming’s First Bias Crime
Law, the Fight Against Discriminatory Crime,
and a New Cooperative Federalism, 45 Howard
L. J. 1 (Fall 2001).
Hazeldean, Suzan, and Pradeep Singla, Out
in the Cold: The Challenges of Representing Immigrant Lesbian, Gay, Bisexual and Transgender Youth, 7 Bender’s Immigration Bulletin 11
(June 1, 2002).
Hermann, Donald H.J., Legal Incorporation
and Cinematic Reflections of Psychological
Conceptions of Homosexuality, 70 UMKC L.
Rev. 495 (Spring 2002).
Jacobs, Melanie B., Micah Has One Mommy
and One Legal Stranger: Adjudicating Maternity for Non-Biological Lesbian Coparents, 50
Buffalo L. Rev. 341 (Winter 2002)
Knauer, Nancy J., The September 11 Attacks
and Surviving Same-Sex Partners: Defining
Family Through Tragedy, 75 Temple L. Rev. 31
(Spring 2002).
Kohm, Lynne Marie, How Will the Proliferation and Recognition of Domestic Partnerships
Affect Marriage?, 4 J. L. & Fam. Studies 105
(2002) (from a right-wing perspective).
Kwok, Chi Steve, A Study in Contradiction: A
Look at the Conflicting Assumptions Underlying
Standard Arguments for Speech Codes and the
Diversity Rationale, 4 U. Pa. J. Const. L. 493
(April 2002).
Maravilla, Christopher Scott, The Feasibility
of a Law to Regulate Pornographic, Unsolicited,
Commercial E-Mail, 4 Tulane J. Tech. & Int.
Prop. 117 (Spring 2002).
Merin, Yuval, Equality for Same-Sex Couples
(University of Chicago Press, 2002) (Extensive
international survey of legal recognition for
same-sex couples, available both in paperback
and hardcover. The author is an Israeli legal
scholar and academic in Tel Aviv, who is also a
current member of Legal.).
Nussbaum, Martha C., Millean Liberty and
Sexual Orientation: A Discussion of Edward
Stein’s The Mismeasurement of Desire, 21 L. &
Philosophy 317 (May 2002).
Robertson, John A., Precommitment Strategies for Disposition of Frozen Embryos, 50 Emory L. J. 989 (Fall 2001).
Schwartzberg, Beverly J., Untangling Marriage’s Hidden History: Two Views, 11 UCLA
Women’s L. J. 281 (Spring/Summer 2001)
(book review essay).
Skover, David M., and Kellye Y. Testy, LesBiGay Identity as Commodity, 90 Cal. L. Rev. 223
(January 2002) (essay).
Stein, Edward, Precis of The Mismeasurement of Desire: The Science, Theory and Ethics of Sexual Orientation, 21 L. & Philosophy
305 (May 2002) (and reply to Nussbaum and
Hacking articles noted above, at 349).
Strasser, Mark, Same-Sex Marriages and
Civil Unions: On Meaning, Free Exercise, and
Constitutional Guarantees, 33 Loyola U. Chi. L.
J. 597 (Spring 2002).
Student Articles:
Employment Law Title VII Sex Discrimination
Ninth Circuit Holds That Male Coworkers’ and
Supervisors’ Harassment of Male Employee for
Failing to Meet Sex Stereotype Constitutes Sex
Discrimination Nicholls v. Azteca Restaurant
Enterprises, 256 F. 3d 864 (9th Cir. 2001), 115
Harv. L. Rev. 2074 (May 2002).
Kelly, Scott, Scouts’ (Dis)Honor: The Supreme Court Allows the Boy Scouts of America to
Discriminate Against Homosexuals in Boy
Scouts of America v. Dale, 39 Houston L. Rev.
243 (2002).
King, Tiffany L., Working Out: Conflicting
Title VII Approaches to Sex Discrimination and
Sexual Orientation, 35 U.C. Davis L. Rev. 1005
(April 2002).
Olson, Kristin, Comprehensive Justice for
Victims of Pornography-Driven Sex Crimes:
Holding Pornographers Liable While Avoiding
Constitutional Violation, 80 Oregon L. Rev.
1067 (Fall 2001).
Pa, Monica, Beyond the Pleasure Principle:
The Criminalization of Consensual Sadomaso-
Lesbian/Gay Law Notes
chistic Sex, 11 Tex. J. of Women & L. 93 (Fall
2001).
Rowland, Virginia, Constitutional Law Deference to Discriminators: Boy Scouts of America v. Dale, 31 N. Mex. L. Rev. 607 (Summer
2001).
Sanford, Bill W., “Virtually” A Minor: Resolving the Potential Loophole in the Texas
Child Pornography Statute, 33 St. Mary’s L. J.
549 (2002).
Schepard, Andrew, Revising ‘Alison D.’:
Child Visitation Rights for Domestic Partners,
NY Law Journal, June 27, 2002, p. 3.
Schilder, Nicole, Anti-Vibrator Legislation:
The Law is on Shaky Ground, 29 Hastings
Const. L. Q. 89 (Fall 2001) (ha ha ha).
Turner, Alex, The Denial of Benefits to the
Same-Sex Domestic Partners of State Employees: How Do Claims of Discrimination Fare Outside the Shadow of ERISA Preemption?, 4 U. Pa.
J. Labor & Emp. L. 669 (Spring 2002).
Voss, Andreas S., The Right to Privacy & Assisted Reproductive Technologies: A Comparative Study of the Law of Germany and the U.S.,
21 NYLS J. Int’l & Comp. L. 229 (2002).
Zahner, Adrianne K., A Comprehensive Approach to Conflicts Between Antidiscrimination
Laws and Freedom of Expressive Association After Boy Scouts of America v. Dale, 77 ChicagoKent L. Rev. 373 (2001).
Specially Noted:
Vol. 21, No. 3 of Law & Philosophy (A Kluwer
journal) features a symposium on Edward Stein’s book, The Mismeasurement of Desire: The
Science, Theory and Ethics of Sexual Orientation. The symposium includes a summary of the
main ideas in his book by Stein, discussions by
Martha Nussbaum and Ian Hacking, and a response by Stein. Individual articles are listed
above. Stein is an articulate exponent of the social construction approach to the issue of sexual
orientation in the context of law. ••• Vol. 6, No.
2 of the Canadian journal, Review of Constitutional Studies (2002), focuses on the Canadian
Charter of Rights and various issues concern-
Summer 2002
ing its proper role within the Canadian legal
system. The Charter has been an important tool
for judicial empowerment of lesbian and gay
equality in Canada, even though it says nothing
directly about lesbians and gay men or sexual
orientation as such. Articles by Lorraine E. Weinrib, Richard H. Pildes, Hester Lessard,
Robin West, Donna Greschner, and Ruth
Colker.
AIDS & RELATED LEGAL ISSUES:
Amarasekara, Kumar, and Mirko Bagaric, The
Vacuousness of Rights in the Euthanasia Debate, 6 Int’l J. Hum. Rts. 19 (Spring 2002).
Berger, Mark, Rethinking the Legal Oversight of Benefit Program Exclusions, 33 Rutgers
L. J. 227 (Winter 2002).
Burris, Scott, Disease Stigma in U.S. Public
Health Law, 30 J. L. Med. & Ethics 179 (Summer 2002).
Correa, Carlos Maria, Unfair Competition
Under the TRIPS Agreement: Protection of Data
Submitted for the Registration of Pharmaceuticals, 3 Chicago J. Int’l L. 87 (Spring 2002).
Felgueroso, Jose, TRIPs and the Dispute Settlement Understanding: The First Six Years, 30
AIPLA Quarterly J. 165 (Spring 2002).
Hoen, Elen ‘t, TRIPS, Pharmaceutical Patients, and Access to Essential Medicines: A
Long Way from Seattle to Doha, 3 Chicago J.
Int’l L. 27 (Spring 2002).
Klein, Andrew R., Fear of Disease and the
Puzzle of Future Cases in Tort, 35 U.C. Davis L.
Rev. 965 (April 2002).
Lazzarini, Zita, Sarah Bray, and Scott Burris,
Evaluating the Impact of Criminal Laws on HIV
Risk Behavior, 30 J. L. Med. & Ethics 239
(Summer 2002).
Maniskas, Richard A., Bragdon v. Abbott:
The Case in Which Reproduction Was Ruled to
Be a Major Life Activity Under the Americans
With Disabilities Act, 10 Widener J. Pub. L. 215
(2001).
129
Mook, Jonathan R., Toyota v. Williams: The
Disability Analysis Continues, 28 Emp. Rel. L.
J. 25 (Summer 2002).
Sykes, Alan O., TRIPS, Pharmaceuticals,
Developing Countries, and the Doha “Solution”, 3 Chicago J. Int’l L., 47 (Spring 2002).
Thomas, Archibald J., III, How to Seek Reasonable Accommodation in the Workplace for a
Physical or Mental Disability, 2 Employee Rts.
Q. 46 (Spring 2002).
Torres, Mary Ann, The Human Rights to
Health, National Courts, and Access to
HIV/AIDS Treatment: A Case Study from Venezuela, 3 Chicago J. Int’l L. 105 (Spring 2002).
Student Notes & Comments:
Bailey, Theodore C., Innovation and Access:
The Role of Compulsory Licensing in the Development and Distribution of HIV/AIDS Drugs,
2001 J. L., Tech. & Pol. 193 (Spring 2001).
Collins, Beth, The Americans With Disabilities Act: Rehabilitation Congressional Intent, 28
J. of Legis. 213 (2002).
DeAgostino, Sienna, Board of Trustees of the
University of Alabama v. Garrett: The Decision’s Impact on the Americans With Disabilities
Act, 79 U. Detroit Mercy L. Rev. 281 (Winter
2002).
Vaughan, Susan Vastano, Compulsory Licensing of Pharmaceuticals Under TRIPS:
What Standard of Compensation? 25 Hastings
Int’l & Comp. L. Rev. 87 (Fall 2001).
EDITOR’S NOTE:
This is the annual Summer Issue of Law Notes.
The next issue will be the September issue,
which will be mailed to subscribers after Labor
Day. ••• 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.