PENNSYLVANIA APPEALS COURT AFFIRMS CUSTODY FOR CO-PARENT OVER BIOLOGICAL MOM ON BEST-INTEREST GROUNDS October 2005

Seizing upon recent doctrinal developments in who are said to have a prima facie right to would become a multi-year effort to exclude cases involving custody claims by stepparents, custody of their children that could only be de- Jones from the children’s life.’” a unanimous three-judge panel of the Pennsyl- feated by showing the biological mother to be The court took note of Jones’s contention that vania Superior Court upheld a trial judge’s rul- unfit. But the Pennsylvania courts have de- the law must change further to reflect the reality ing that primary parental custody of two young parted from this traditional approach in cases of same-sex families, but concluded that it was twins should go to their biological mother’s involving stepparents, and the Superior Court not necessary to go so far in order to upheld former same-sex domestic partner, because the panel was ready to extend this departure to the Judge Scott’s order in her favor. “Jones asserts best interest of the children outweighed their context of same-sex partners. The leading that the law is changing. As the concept of fam- biological ties to their birth mother. Jones v. precedent is Charles v. Stehlik, 744 A.2d 1255 ily evolves the law will evolve along with it. Jones, J. A25041/05, No. 271 EDA 2005 (Pa. (Pa. 2000). Jones claims that in the situation presented Super Ct.) (“non-precedential decision”). The Under this newer approach, a non-biological here, where two people together decide to have September 26 per curiam ruling affirmed a de- parent who has bonded with a child and has an a child, although only one is the biological par- cision issued last January by Bucks County “in loco parentis” relationship with that child ent, and they both live together and parent the Common Pleas Judge Susan Devlin Scott. could seek primary custody without having to children together following their birth, the stan- Patricia Jones and Ellen Boring Jones began prove that the biological parent is unfit to have dard should be a simple best interests analysis, living together as partners in 1988. They de- custody. However, the non-biological parent and that the law should abandon both the pre- cided to have children through donor insemina- has the difficult task of showing by clear and sumption in favor of the biological parent and tion. Ellen gave birth to twin boys in December convincing evidence that the child’s best inter- the ‘clear and convincing’ standard of proof. 1996, and the women and their children lived est will be served by an award to the non- Since the judge determined, and we agree, that together as a family until January 2001, when biological parent. The usual standard of proof there was ‘clear and convincing evidence’ in Ellen moved out of Patricia’s house with the in civil cases is a preponderance of the evi- this case, we do not reach that issue today.” children. According to the court’s opinion, El- dence, so the requirement of clear and convinc- The court seemed to think it was not really len sued Patricia for child support, but she took ing evidence is intended to impose a greater breaking new ground, since it designated the various steps to reduce and then try to eliminate burden on the non-biological parent than would decision as “non precedential” and did not the twins’ contact with their co-parent. (The apply to a custody dispute between a child’s publish the text on its website, but actually the court refers to the parties as Jones and Boring, biological parents (mother and father). extension of the stepparent approach to same- but the official title of the case is Jones v. Jones, The Superior Court found that Judge Scott sex couples is a significant move, since it low- because during their partnership Boring had had faithfully followed this approach. “While ers the evidentiary barrier that co-parents taken Jones’ last name, which was also the last the scale was tipped in favor of Boring,” wrote would face in some other states where they name given to the twins.) the Superior Court, “Jones produced clear and would have to show that a biological parent is Patricia Jones then sued to have primary cus- convincing reasons to even the scale and then unfit before they could seek primary custody of tody switched to her, arguing that it was in the tip it on her side. Jones did not establish that the children. The decision does continue a twins’ best interests to have continued contact Boring was unfit, and was not required to do so, trend in the Pennsylvania courts of extending with both of their mothers and that she would but Jones did clearly and convincingly estab- more legal recognition to LGBT families. facilitate this while Ellen was trying to prevent lish that the children would be better off with Jones’ case drew the support of several it. Judge Scott conducted a thorough inquiry, her as the primary custodian and that the chil- LGBT public interest firms, including Lambda according to the Superior Court’s opinion, and dren’s relationship with both parties would be Legal, the National Center for Lesbian Rights, came to the conclusion that Patricia was cor- better fostered if custody were awarded to and the Center for Lesbian and Gay Civil rect. Although Ellen was not an unfit mother, Jones.” Rights (a Pennsylvania public interest firm). primary residence with Patricia would be better Judge Scott had found that “Boring was in- Maureen Gatto, a Pennsylvania lawyer, served for the twins, based not only on Patricia’s com- clined ‘to attempt to exclude Jones’ and the as local counsel on the case. A.S.L. mitment to preserve their relationship with both court cautioned that Boring ‘can’t totally con- mothers, but also because of Patricia’s greater trol the children’s lives without any input from LESBIAN/GAY stability and various problems with Ellen, in- the other person that was a parent.” After the cluding difficulty holding down a job and parents separated, “Boring attempted to re- LEGAL NEWS drinking problems. move ‘Jones’ from the children’s names after Traditionally, custody disputes between bio- failing to prevail in an effort to change the boys’ California Legislature First In the Nation to logical parents and third parties have been names to her maiden name, which, as Judge Approve Same-Sex Marriage But Governor heavily weighted in favor of biological parents, Scott put it, ‘...was an early attempt at what Quickly Announces Veto

LESBIAN/GAY LAW NOTES October 2005 The California Assembly voted 41–35 on Sep- Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NYC 10013, 212–431–2156, fax 431–1804; e-mail: [email protected] or tember 6 to approve the Religious Freedom and [email protected] Civil Marriage Protection Act (RFCMP Act), Contributing Writers: Alan J. Jacobs, Esq., NYC; Sharon McGowan, Esq., NYC; Tara Scavo, Esq., NYC; Daniel R Schaffer, NYC; Robert Wintemute, Esq., King’s which had been approved in the Senate the pre- College, London, England; Leo Wong, Esq., NYC; Eric Wursthorn, NYLS ‘07. vious week on a 21–15 vote. The measure was Circulation: Daniel R Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212–353–9118; e-mail: [email protected]. Inquire for rates. intended to adopt, for the first time in U.S. his- LeGaL Homepage: http://www.le-gal.org Law Notes on Internet: http://www.qrd.org/qrd/www/usa/legal/lgln tory by legislative action, a gender-neutral defi- ©2005 by the LeGaL Foundation of the Lesbian & Gay Law Association of Greater New York ISSN 8755–9021 194 October 2005 Lesbian/Gay Law Notes nition of marriage specifically intended to allow 6th Circuit Says Sham Marriage Destroyed crepancies, along with the fraudulent marriage, same-sex couples to marry. But just a day later, Asylee’s Credibility were sufficient to support an adverse credibility a spokesperson for Governor Arnold Schwar- finding based on substantial evidence, and it zenegger announced that he would veto the Entering a sham marriage to obtain a U.S. im- denied Safadi’s petition for review of the BIA’s measure “out of respect for the will of the peo- migrant visa evidences a lack of credibility on decision. Alan J. Jacobs ple,” referring to the passage in 2000 of Propo- the part of the applicant, which is sufficient to sition 22 with the support of 61% of the voters, bar asylum when the same person later claims N.Y. Family Court Invites Reconsideration of Alison and when the bill was finally sent to him, he ve- that he fears persecution in his home country D. toed it on Sept. 29. However, as part of his veto for being gay. Safadi v. Gonzales, 2005 WL message, the governor indicated that he 2175937, 2005 Fed.App. 0682N (6th Cir.Aug. In one of those heartbreaking cases in which strongly supports California’s domestic part- 9, 2005). trial courts bound by unfortunate appellate nership legislation and will oppose any efforts Saleh Safadi, a Jordanian citizen, entered in precedents are constrained from “doing the to “rollback” existing rights for same-sex cou- the U.S. in 1988 on a student visa to attend right thing,” Suffolk County (N.Y.) Family ples, thus implicitly stating his opposition to Wichita State University. A year later,he moved Court Judge Barbara Lynaugh ruled that the two proposed constitutional amendments that to Detroit. Three years later, he married a U.S. former same-sex partner of an adoptive parent might make it onto the ballot eventually. citizen, Jami Easterly, and applied for an immi- could not seek visitation with the child she had Schwarzenegger also announced the signing of grant visa. Safadi told officials who interviewed participated in raising for five years. Denise B. several other legislative measures that had him regarding adjustment of status from stu- v. Beatrice R., NYLJ, 9/19/2005, p. 21. Thus, been pushed by gay political leaders. dent to immigrant that the marriage was legiti- the ghost of Alison D. V.Virginia M., 77 N.Y.2d Proposition 22 stated that only the union of a mate. However, adjustment of status was de- 651 (1991), lives on. man and a woman could be recognized as a nied in 1996, and Safadi obtained a divorce Denise and Beatrice had a long-term rela- marriage in California, enacting that proclama- from Easterly. tionship and decided to adopt a child. Beatrice tion as a section of the state’s marriage statute. At the same time as Safadi was married to adopted the child, Bryce, in China and brought Under California law, a statutory provision en- Easterly, he claims to have entered a commit- him to the U.S. in 2000. Denise and Beatrice acted through public initiative may not be over- ted, live-in relationship with a man, Wesley and Bryce lived together as a family for five ruled or replaced by simple legislation. Assem- Hoskins. This relationship allegedly started years, with Denise playing a full parental role, blymember Mark Leno, the lead sponsor of the shortly after Safadi moved to Detroit in 1989. but they never attempted to have Denise also RFCMP Act, argued that Prop. 22 related only After the divorce from Easterly, Safadi sought become an adoptive parent of Bryce a proce- to the question whether California would recog- asylum based on his status as a homosexual, al- dure that is available for same-sex couples in nize same-sex marriages performed in other ju- leging that this status would subject him to New York. Recently Beatrice ended the rela- risdictions, relying on arguments by its propo- prosecution were he deported to his home tionship and “severed all contact” between nents that its purpose was to shield California country, Jordan. Denise and Bryce. Denise sued seeking visita- from having to extend recognition to such mar- The immigration judge did not question tion, and Beatrice moved to dismiss on standing riages. Under Leno’s reasoning, the legislature whether homosexuality could be a grounds for grounds. could enact a measure authorizing the perform- asylum, under the Immigration Service’s stan- “Given the law as it exists,” wrote Judge ance of same-sex marriages within the state, dard that a person can be granted asylum if he Lynaugh, “the court is unfortunately con- but could not, without a new public referen- has a well-founded fear of persecution in his strained to find that petitioner lacks standing to dum, require the state to recognize such out- home country on account of “membership in a seek visitation with the child who has enjoyed a of-state marriages, and he drafted his measure particular social group”. 8 U.S.C. sec. close and loving relationship with petitioner accordingly. 1101(a)(42)(A). The judge found, however,that since infancy, with no consideration as to any In light of the close margins by which the Safadi had not proved he was gay. His lie re- detriment such a harsh result will have on this measure passed in each house, and that no Re- garding his being in a legitimate marriage child.” The ruling was foreordained, since not publican in either house voted for it, a veto showed a lack of credibility, which called into only had the N.Y. Court of Appeals ruled override would not be likely. Indeed, the failure question his later assertion that he was gay. The against standing for a same-sex co-parent in of the measure to attract even one Republican judge denied asylum to Safadi, and the Board of Alison D. almost 15 years ago, but the 2nd De- vote shows the problem faced by Schwarzeneg- Immigration Appeals (BIA) affirmed her deci- partment had similarly ruled in Janis C. V. ger in dealing with this legislation. The state- sion. Christine T., 742 N.Y.S.2d 381 (2002), and the ment issued by his spokesperson on September The 6th Circuit panel reviewed the case us- Court of Appeals had refused leave to appeal in 7 made clear the governor’s support for domes- ing a standard that upholds a factual determi- that case. tic partnership rights, and his view that enact- nation of the BIA unless it finds that the evi- “The court takes note of now Chief Judge ing RFCMP would violate the California Con- dence compels reversal. Safadi was able to Kaye’s dissenting opinion in Alison D. v. Vir- stitution because of Prop. 22. Los Angeles show instances in the past where inconsisten- ginia M., supra, where she so rightly opined Times; San FranciscoChronicle, September 8. cies between testimony at a hearing for adjust- that ‘the impact of today’s decision falls hardest To give proponents of the legislation time to ment of status and testimony at an asylum hear- on the children of those relationships, limiting lobby the governor, legislative leaders delayed ing did not compel a judge to find a lack of their opportunity to maintain bonds that may be sending the bill to the Executive Branch, and credibility in the latter hearing. However, the crucial to their development.’ Given the fre- gay rights groups in the state mounted a very Justice Department countered by showing in- quency with which children today are being public campaign to persuade the governor to stances where such discrepancies led to a find- raised by and bonding with long-term hetero- sign it. Shortly after announcing his intended ing of a lack of credibility. In addition, the Jus- sexual stepparents (who are equally affected by veto, Schwarzenegger also announced that he tice Department pointed out that this was not an the holdings herein) and nonmarital homosex- would stand for re-election, and then vetoed the isolated instance; the Department presented ual partners, perhaps the time has come for the measure as soon as it arrived at his desk. A.S.L. other examples of conflicting testimony to ar- Court of Appeals to revisit its ruling in Alison gue that Safadi has a propensity to lie under D.. oath. The 6th Circuit held that the various dis- Lesbian/Gay Law Notes October 2005 195 This appears to be an invitation to counsel for universities that provide partner benefits to of ‘a union similar to marriage,’” because mar- Denise to appeal Lynaugh’s ruling and attempt their employees. riage carries with it a broad panoply of statutory to get her case to the court of appeals. But what Governor Granholm, nominally the lead de- rights, none of which are made available to do- would be even more appropriate, in light of leg- fendant, actually called on the court to interpret mestic partners. She said that the criteria, islative advances on LGBT rights in New York the amendment so as to allow the state to re- which differ from one employer to the next but State over the past several years, would be to suming negotiations for partner benefits in its usually involve the worker and her partner liv- bring this matter before the legislature for a collective bargaining agreements. The City of ing together, both being at least 18 years old, binding solution that acknowledges the reality Kalamazoo, the other named defendant, re- and being willing to affirm their economic in- of family life in New York State. A.S.L. frained from taking a position, merely signify- terdependence in some way, do not create any- ing to the court that it needed to know, one way thing akin to a marriage or civil union. “The cri- Michigan Judge Finds Marriage Amendment Does or the other, whether it could continue provid- teria, even when taken together, pale in Not Affect Partner Benefits ing the benefits or must abide by its previous comparison to the myriad of legal rights and re- announcement that the benefits would cease on sponsibilities accorded to those with marital In a significant ruling that rejects the position of January 1. Cox intervened to defend his opin- status,” she wrote. Michigan’s attorney general, Ingham County ion. As to Cox’s specific argument about the Circuit Court Judge Joyce Draganchuk ruled on After discussing the method of interpreting phrase “for any purpose,” Draganchuk said September 27 in National Pride at Work, Inc. v. constitutional provisions, and concluding that that these words had to be interpreted in con- Granholm, No. 05–368–CZ, that the anti-gay the intent of the people in approving the text of the entire amendment. Public employers marriage amendment Michigan voters added to amendment was a key concern, Draganchuk were not “recognizing” any union on behalf of their state constitution last year does not ban asserted, “The intent of the people who ap- the state, but rather were exercising their domestic partnership health benefits for public proved art. 1, sec. 25, is contained in the very authority to extend benefits based on limited employees in the state. language of the amendment. The stated pur- criteria. Draganchuk emphasized several times The amendment, now art. 1, sec. 25 of the pose of the amendment is ‘to secure and pre- that the amendment referred to “benefits of state constitution, was supported by an over- serve the benefits of marriage for our society marriage,” and that in her view health benefits whelming majority of the voters. It states: “To and for future generations of children.’ Health are “employment benefits,” not “benefits of secure and preserve the benefits of marriage for care benefits are not among the statutory rights marriage.” our society and for future generations of chil- or benefits of marriage.” Given their positions in the case, one sus- dren, the union of one man and one woman in “An individual does not receive health care pects Governor Granholm and the city of Kala- marriage shall be the only agreement recog- benefits for his or her spouse as a matter of legal mazoo will be happy to accept this ruling, as nized as a marriage or similar union for any pur- right upon getting married. If a spouse receives will other public employers in the state that pose.” health care benefits, it is as a result of a con- have been providing domestic partnership Seizing on the phrase “for any purpose,” At- tractual provision or policy directive of the em- benefits. The remaining question is whether At- torney General Michael Cox issued an opinion ployer. Likewise, health care benefits are not torney General Cox will appeal the ruling and, arguing that the amendment bars public em- limited to those who are married. Within the presuming he has political ambitions, one ployers in the state from providing domestic confines of what the health insurance provider would expect that a prompt appeal will be filed. partnership benefits to their employees. As a offers, an employer may choose to offer cover- A.S.L. result of Cox’s opinion, collective bargaining age to any person who bears an employer- over a demand for domestic partnership bene- defined relationship to the employee. Health Connecticut Attorney General Opines on fits for state employees represented by Local care benefits for a spouse are benefits of em- Recognition of Out-of-State Couples 6000 of the United Auto Workers was sus- ployment, not benefit of marriage.” pended, and the city of Kalamazoo, which had Attorney General Cox argued that any gov- As Connecticut’s new Civil Union Act was to been providing such benefits to its employees, ernment employer’s extension of benefits to a take effect on October 1, the state’s Registrar of had announced it would suspend the benefits domestic partner constituted the government’s Vital Records, Elizabeth Frugale,sought advice program effective January 1 unless a court “recognition” of the partner as having a rela- from the office of Attorney General Richard ruled contrary to the A.G. Several public uni- tionship to the employee, and thus violated the Blumenthal on how to deal with potential appli- versities and colleges that provide such bene- amendment’s command that such relationships cations from same-sex couples who had already fits to their employees were also potentially af- not be recognized for “any purpose.” The judge entered civil unions, domestic partnerships, or fected, but so far none had rescinded benefits rejected this reasoning. marriages in other jurisdictions. On September programs. “The Court must look at the constitutional 20, Blumenthal released Attorney General The lawsuit was filed by National Pride at provision not only in a strict grammatical sense Opinion 2005–24, responding to the request for Work, a gay employees’ group, and about forty but also in light of the general purpose for guidance, in a formal opinion letter address to individuals who are directly affected in some which the provision was adopted,” she wrote. the state’s Public Health Commissioner,J. Rob- way, either as potential recipients of benefits or “Therefore, the Court views the phrase in its ert Galvin. as employees who might be losing their bene- entirety to determine its purpose. The provision Blumenthal took the position that Vermont fits. The plaintiffs sought a declaration that the requires that only a union between one man and Civil Unions and California Domestic Partner- Attorney General was wrong and that the con- one woman will be recognized ‘as a marriage or ships were sufficiently similar in structure and stitutional amendment did not apply to the is- similar union.’ The employer-defined criteria legal effect so that Connecticut would recognize sue of partner health benefits. They argued that for obtaining the health insurance benefits in them as valid for purposes of Connecticut law, there is a huge distinction between health this case are not based on marriage. The ques- and there would be no need for persons who had benefit programs adopted by employers, and tion is whether the criteria act as recognition of such status to apply for a new Connecticut civil the state actually “recognizing” a same-sex ‘a union similar to marriage.’” union. However, noting that the Civil Union Act marriage or even a civil union. Several friend- Judge Draganchuk found it easy to conclude specifically defines marriage in Connecticut as of-the-court briefs were filed in support of the that the limited criteria employed to find eligi- “the union of one man and one woman,” Blu- plaintiffs, including briefs from several public bility for the benefits did not “act as recognition menthal took the position that a same-sex mar- 196 October 2005 Lesbian/Gay Law Notes riage contracted in Massachusetts would not be confides pesonnel decisions to the discretion of to the challenge of Colorado Amendment 2 in recognized as a marriage in Connecticut. At the the director. (Lower courts had found that dis- Romer v. Evans, causing some uneasiness same time, parties to a Massachusetts same-sex cretion to be non-reviewable. On remand, the among Bush’s conservative political base about marriage would not be barred from entering agent won a reinstatement order from the dis- his appointment. While it appeared that Rob- into a civil union in Connecticut, since their trict court, but it was reversed in the court of ap- erts has long held very conservative views on Massachusetts marriage would be a nullity in peals and the Supreme Court denied certiorari the major issues confronting the Court these Connecticut. for a review on the merits.) days, his pro bono activity provided some hope Blumenthal’s opinion accepts without any Either as Associate Justice from 1972 until that he might take a more libertarian approach discussion or apparent reflection the relevance 1986, or as Chief Justice from then until 2005, to gay issues as a Justice, leading to positions of the federal Full Faith and Credit Clause and Rehnquist consistently sided with state defen- similar to those espoused by Justices O’Connor the federal Defense of Marriage Act to deter- dants against lesbian or gay plaintiffs, voting to and Anthony M. Kennedy, Jr., but this was all mining these questions, although there is now reject constitutional challenges to sodomy laws speculation in default of an actual record to cri- much recent published scholarship rejecting as well as claims that sexual minorities were tique. Roberts was confirmed and sworn into of- the idea that the Full Faith & Credit Clause has entitled to protection against discriminatory fice as Chief Justice on Sept. 29, in time to sit anything to do with whether one state recog- government actions. Perhaps most notably, he with the Court when it opened its October 2005 nizes marriages or other legal statuses (such as passionately dissented from a decision by the term on October 3. Roberts’ confirmation had civil unions or domestic partnerships). Most Court not to review an 8th Circuit order that the been opposed by most of the leading civil rights scholars have argued that the question of recog- University of Missouri recognize a gay student organizations, including those in the LGBT nition is governed by common law principles of group, observing that the university could take communities, on the ground that his past record comity, as a particular marriage, civil union or the position that allowing a group of gay people showed little evidence of a high regard for the domestic partnership is not a legal judgment or to meet was akin to allowing a group of people role of the constitution in protecting individual legislative act. suffering from measles to meet, in terms of po- rights. A.S.L. Blumenthal’s opinion appears to rely heavily tential public health implications. See Gay Lib on the Connecticut appeals court decision in v. University of Missouri, 558 F.2d848 (8th Cir. 2nd Circuit Affirms Rejection of Pink Trial Rosengarten v. Downs, 71 Conn. App. 372, 802 1977), cert. denied sub nom Ratchford v. Gay Holocaust Funds Petition A.2d 170 (2002), in which the court held that it Lib, 434 U.S. 1080 (1978) (dissent from denial lacked jurisdiction to dissolve a Vermont civil of cert.). A 2nd Circuit panel has unanimousl rejected a union because such a civil union was not recog- And, of course, Chief Justice Rehnquist was challenge to U.S. District Judge Edward R. nized in Vermont.The court took the view that if the author of the Court’s opinion in Boy Scouts Korman’s decision last year that a small per- Connecticut adopted civil unions, there would of America v. Dale, 530 U.S. 640 (2000), in centage of remaining funds in a compensation be a basis for dealing with civil unions from which the Court voted 5–4 to reverse the New fund for Holocaust survivors should not be di- Vermont.On the other hand, Blumenthal points Jersey Supreme Court and uphold the Boy verted into a special effort to find gay Holocaust out, an amendment was specifically added to Scouts’ constitutional claim of immunity from survivors and support research and outreach the state’s Civil Union Act for the express pur- the New Jersey Human Rights Law ban on sex- efforts surrounding the gay experience during pose of declaring the state’s public policy in ual orientation discrimination. Rehnquist the Holocaust. In re Holocaust Victim Assets marriage in order to avoid having to recognize wrote that the Scouts was an “expressive asso- Litigation, 2005 WL 2175954 (Sept. 9, 2005). same-sex marriages from out of state, even ciation” entitled to exclude persons from mem- Finding that there was a wide range of permissi- though the Civil Union Act, like the state’s mar- bership if their inclusion would contradict the ble discretion vested in Judge Korman and the riage statute, actually says nothing about recog- message the organization wanted to send to its Special Master appointed to determine distri- nition of out-of-state marriages or civil unions. members and the world at large. Rehnquist bution from the fund, Judah Gribetz, the court Blumenthal concludes: “In summary, civil found that forcing the Scouts to let James Dale, decided not to upset their determination that unions performed in other States are entitled to an openly gay man who had been co-president remaining funds should go for humanitarian as- full faith and credit in Connecticut, and cannot of the Rutgers University Gay Student Associa- sistance to survivors living in the former Soviet be repeated here. Out-of-state same-sex mar- tion, continue to serve as an assistant Scout- Union. riages have no legal force and effect here, and master would be tantamount to forcing the Ever since a settlement was reached in 1998 such couples can enter into a civil union in Scouts to project a pro-gay message, even if in the class action suit against Swiss Banks that Connecticut.” Blumenthal also notes that his Dale never said anything about homosexuality were charged with various improprieties in letter is only giving the opinion of his office, and or gay rights while performing his duties as a connection with the period of the Nazi regime in that ultimately the courts would have to deter- Scoutmaster. Germany (1933–1945), there has been intense mine whether the opinion is correct. A.S.L. Of course, Rehnquist was on the dissenting interest in how the $1.25 billion settlement side in Romer v. Evans, 517 U.S. 620 (1996), fund would be distributed. Early in the process Supreme Court Changes and LGBT Rights and Lawrence v. Texas, 539 U.S. 558 (2003), the there was agreement that a share of the money two biggest gay rights victories during his time would go to surviving gay Holocaust victims, The death of Chief Justice William Hubbs on the Court, but he contented himself with but it has proved difficult to locate them due to a Rehnquist on September 3 removed one of the joining the heated dissenting opinions in those variety of historical factors and social factors.. staunchest foes of gay rights from the head of cases by Justice Antonin Scalia. A group formed to represent the interests of the federal judiciary. During his 33 years on the President Bush quickly designated D.C. Cir- gay survivors, the Pink Triangle Coalition Court, Rehnquist voted against gay rights cuit Judge John P.Roberts, Jr.,then awaiting the (whose name was inspired by the symbol that plaintiffs in every case before him save one, beginning of confirmation hearings for an ap- the Nazis required gay concentration camp in- Webster v. Doe, 486 U.S. 592 (1988), in which, pointment as Associate Justice to replace San- mates to wear on their uniforms), proposed that writing as chief justice for the Court, he ruled dra Day O’Connor, to be the new Chief Justice. one percent of the settlement fund be set aside that a discharged CIA agent was entitled to ju- As we have commented previously, Roberts has for “scholarly,educational, and outreach efforts dicial review of his constitutional claims, even no public record on gay rights issues, but in pri- related to Nazi persecution of homosexuals.” though the statutory authorization for the C.I.A. vate practice he provided pro bono assistance Some of this money would be used to undertake Lesbian/Gay Law Notes October 2005 197 intensive research efforts that might lead to the advocated by the PTC. He pointed out that it other entity but the law schools. And, apart from discovery of more than the paltry handful of was distinctly possible that gay survivors who occasional grants funding particular research survivors who have come forward to claim com- were members of various identified ethnic and projects, independent law schools are generally pensation from the fund. The rest would be religious groups (but who were not known to the not federal funding recipients. Several years used to promote education about the gay expe- court to be gay) were beneficiaries of the fund ago, the Solomon Amendment was itself rience during the Holocaust, which could in- through their other identifications, so it seemed amended to exempt from its application any clude funding general research and supporting unlikely that the handful of known gay recipi- federal funds provided primarily for the pur- museum exhibitions and development of edu- ents were the only ones who had been compen- pose of student expenses, so federal work study cational materials for use in schools. sated, and he cautioned against assuming that and scholarship money is not affected. Writing for the panel, Circuit Judge Jose gay survivors “have not received a proportion- The 3rd Circuit’s decision is stayed pending Cabranes quoted at length from the Coalition’s ate share of the total distribution in this case,” Supreme Court review, so the major research proposal for the use of the funds, reciting the as the PTC had argued. universities continue to prevail on their law post-war history that led gay survivors to stay Cabranes wrote that in evaluating Judge Kor- schools to allow military recruiters on campus. hidden. “After 1945, the circumstances en- man’s application of cy pres, the appeals court Although Harvard Law School had announced countered by homosexual survivors of Nazi per- was essentially limited to correcting clearly er- a reinstatement of its ban on military recruiters secution are unique because homosexual men roneous legal rulings or abuses of discretion. shortly after the 3rd Circuit was announced last continued to be singularly and intensively pur- Cabranes rejected the PTC’s argument that year, on September 20 Dean Elena Kagan an- sued, imprisoned, and persecuted in WestGer- Korman’s decision was part of the “long- nounced that the law school had to let the mili- many and Austria under the same legal codes standing historical refusal to recognize the suf- tary come back on campus this fall in order to used by the Nazis until as late as 1969 and fering of thousands of homosexuals who re- avoid endangering millions of federal research 1971, respectively. Survivors were publicly mained forgotten victims of Nazi persecution dollars that go to Harvard Medical School, as stigmatized, harassed, silenced, and re- for decades after the end of the Third Reich,” well as federal grants going to many other parts imprisoned; they were excluded from compen- pointing out that Korman had acknowledged of the university. A.S.L. sation and ignored by elected officials for more this history in his opinion with lengthy quota- than forty years. As a consequence, very few tions from the materials submitted by the PTC. Bad News for Asylum Applicants in the 2nd homosexuals victims have come forth to seek “Although the District Court concluded that Circuit? compensation or claim assets. Moreover, due to payments to needy Holocaust survivors take the fear of being re-imprisoned, many of the priority over the scholarly, educational, and The U.S. Court of Appeals for the 2nd Circuit victims did not disclose their homosexuality to outreach programs proposed by the PTC, it announced on September 13 that the backlog of their families or the state.” never underplayed the suffering caused by asylum cases has become so severe that the The Coalition (which was referred to in the Nazi persecutions against homosexuals,” wrote Circuit is creating a separate Non-Argument opinion by its initials as the PTC) also pointed Cabranes. “Wenow hold that the District Court Calendar to deal with asylum cases. The 2nd out that unlike other victim groups, “homosex- acted within its discretion by rejecting the Circuit has long prided itself on having oral ar- ual victims had no extended familial, social and PTC’s proposal and concluding that the needi- gument for a much wider range and larger pro- organizational networks outside of Germany est among the identifiable survivors be they portion of its docket than is common in the other such as those relied on by victims from relig- Jewish, homosexual, Jehovah’s Witnesses, dis- circuits, but has concluded, with announced ious or ethnic groups which could advocate on abled or Romani must first be brought some reluctance, that it cannot deal expeditiously their behalf and contribution to the formation of comfort in the final years of their lives.” A.S.L. with the explosion of asylum appeals unless it a collective memory of the state-sponsored adopts what may prove to be close to a summary crimes of which they had been victims.” It was The Pentagon Strikes Back procedure for dealing with them. In addition, not until several decades after the war,when the the court is planning to toughen up on enforce- gay liberation movement took hold in Europe Last year, the U.S. Court of Appeals for the 3rd ment of briefing deadlines. and the United States, that scholars began to Circuit ruled that the Solomon Amendment, The combination of these two changes will emerge with studies about the gay experience of which bars federal funds for schools that deny put a severe strain on the private immigration the Holocaust, by which time it proved difficult access to military recruiters, imposed an un- bar, and especially those who are handling pro to find survivors willing to be identified. constitutional condition by unduly burdening bono asylum cases, a category that includes The new ruling concerns funds left un- the first amendment rights of law schools and many gay and transgender asylum applicants. claimed after initial distributions, as to which their faculties. See Forum for Academic and In- Bar associations and law schools in the 2nd the Special Master was recommending meth- stitutional Rights v. Rumsfeld, 390 F.3d 219 Circuit should anticipate a quantum jump in ods of allocation. This required Judge Korman (3rd Cir.2004). The Supreme Court granted the the requests for pro bono assistance in asylum to apply a doctrine known as cy pres, under government’s petition for certiorari, and the cases, and organizations providing assistance which a court may divert funds from their origi- case is scheduled for argument on December 6. to gay and transgender asylum applicants in the nal designated purpose to a new purpose that Meanwhile, however, some schools decided to 2nd Circuit will need much more support from would be appropriate in light of the original bar military recruiters, and the Pentagon struck their members and volunteers, since failure to designation and changed circumstances. The back by publishing in the Federal Register the meet the stringent filing deadlines will mean Special Master recommended that remaining names of three law schools that are considered that appeals are dismissed. Those who are ea- funds be use for additional assistance to “iden- to be out of compliance with the Solomon ger to help should contact Immigration Equal- tified destitute Jewish survivors in the Former Amendment because they will not agree to al- ity, which helps to find attorneys for LGBT asy- Soviet Union.” The PTC proposed diverting a low military recruiters on campus: New York lum applicants. Other opportunities may be very small percentage of these funds to the pur- Law School, Vermont Law School, and William available by contacting the Immigration & Na- poses mentioned above. Mitchell College of Law. What these schools tionality Law Committee of the New York City District Judge Korman decided that the have in common is that they are all unaffiliated Bar Association. pressing needs for assistance by identified des- with universities, and thus their defiance does In an appearance at New YorkLaw School on titute survivors outweighed the interests being not jeopardize the flow of federal money to any September 26 as keynote speaker for a confer- 198 October 2005 Lesbian/Gay Law Notes ence on judicial review of immigration cases, Dr. Leonardo Magdaleno Comparan, a Mexi- United States. Oregon’s constitution dates from 2nd Circuit Chief Judge John Walker, Jr., indi- can national, sought asylum in the U.S., claim- 1857. cated that a small percentage of the asylum ap- ing he has a well-founded fear of persecution In a 1982 case, State v. Robertson, 649 P.2d peals may be referred to the regular argument because of his membership in a particular so- 569, the Oregon Supreme Court adopted a calendar if they present novel or unsettled cial group, namely, gay men in Mexico. At his broad reading of this provision, protecting a questions of law. Requests for oral argument removal hearing, Comparan testified about the wider range of speech than the U.S. Supreme may not be made by motion, but can be raised hostility he encountered in Mexico because Court has been willing to protect under the First in a special section of the brief on the merits. people suspected he was gay. But the Immigra- Amendment. For example, unlike federal con- Members of the non-hearing panels will also tion Judge (IJ) rejected Comparan’s argument stitutional law, Oregon constitutional law rec- have the power to designate transfer of a case to that gay men (identified in the opinion as “ho- ognizes no obscenity obsession to its protection the regular argument calendar sua sponte if they mosexuals”) constitute a particular social for free speech, as a result of which the Oregon deem the legal issues appropriate for such group for this purpose and ruled against Com- court has struck down various restrictions on transfer. paran’s petition without determining any of the adult bookstores and theaters that would have Walker confirmed that this development was other issues raised by the case. As is its current been sustained against a federal constitutional reacting to the practice introduced during the procedure, the Board of Immigration appeals attack. Bush Administration of the Bureau of Immigra- affirmed summarily without a hearing or ex- In both of the cases decided Sept. 29, both tion Appeals (BIA) virtually rubber-stamping planatory opinion. the trial courts and the Court of Appeals had Immigration Judge decisions and no longer This course of events will sound odd to any- upheld convictions for the operation of estab- writing opinions in most cases, which was un- one who has been following the developing asy- lishments in which live sexual entertainment dertaken at the behest of former Attorney Gen- lum law involving gay men in the 9th Circuit, was provided. In Ciancanelli, the defendant op- eral John Ashcroft in order to clear up a big since there have been two recent cases in which erated a business called Angels, in Roseburg. backlog of appeals pending before the Board the 9th Circuit has accepted the argument that At Angels, individual customers or groups of without having to increase the resources allo- gay men do constitute a particular social group. customers could order a show to be performed cated to the appeals process. The consequence, See Karouni v. Gonzales, 399 F.3d 1163 (9th for them in a viewing room that would involve of course, is that the first real review on the mer- Cir. 2005) and Boer-Sedano v. Gonzales, 418 nude performers simulating and engaging in its that an asylum applicant would get is at the F.3d 1082 (9th Cir. 2005). One would have sexual acts with each other. (The performers federal circuit courts, not the BIA, and the new thought the point well-established by now. But were not supposed to engage in intercourse with summary procedure being introduced in Octo- the IJ was evidently relying on earlier case law the customers as part of their acts, but the male ber by the 2nd Circuit will raise questions involving a gay Mexican transvestite, and found undercover officers who visited Angels experi- about whether asylum applicants are ever af- that because Comparan was “a low-profile, enced having nude women rub their breasts forded a true appeal on the merits of their non-transvestite” gay men, he “does not appear against the officers, and the women also en- claims. The 2nd and 9th Circuits between them to be a member of any subgroup that is particu- gaged in oral sex with each other as part of the have about 75 percent of the nation’s immigra- larly at risk.” Since the IJ’s decision predates show). Only adults were admitted as customers, tion appeals; the 9th Circuit has long had a pro- the recent 9th Circuit rulings, the IJ’s narrower and the live shows took place in special rooms cess for non-hearing dispositions of a wide ruling is explicable, but eminently reversible, for customers who had specifically requested range of administrative cases, including immi- and so a remand was ordered to provide an op- them. gration appeals. Judge Walker indicated that in portunity for the IJ to address the other issues in In Dufloth, a local ordinance was invoked the past few years the number of asylum cases the case, including a claim by the government against a nude dancing club on the ground that in the 2nd Circuit had come to almost equal the that the asylum petition was untimely. A.S.L. nude dancers were exhibiting their bodies less number of all other cases filed in the circuit. than four feet away from members of the audi- Neither the immigration statutes nor the Con- Oregon Supreme Court Reaffirms Broad ence. The city of Nyssa ordinance in question stitution have been construed to require an ac- Constitutional Protection for Sexual Expression did not outlaw nude dancing entertainment en- tual hearing process for immigration appeals. tirely, but required that a certain distance be Although Walker expressed hope that the In a pair of 5–1 rulings issued on Sept. 29, the maintained between dancers and customers. new procedures will not bias the outcome of Oregon Supreme Court reaffirmed its liberal in- Reversing the court of appeals, the Supreme asylum appeals, one may rightly express skep- terpretation of Art. I, Sec. 8 of the Oregon Con- Court held in both cases that the statute and the ticism. One can hear Judge Walker’s remarks stitution in the context of reversing the convic- ordinance were unconstitutional, finding that through a link on the conference website: tions of persons prosecuted for operating nude dancing is an expressive activity, contrary www.nyls.edu/seekingreview. A.S.L. businesses that provide live sexually-explicit to the state’s argument. The state also argued entertainment under statutes directed specifi- that even if nude dancing was an expressive ac- 9th Circuit Reverses on Another Mexican Asylum cally at such establishments. State v. Ciancan- tivity (a point that the U.S. Supreme Court has Case elli, 2005 WL 2386465; City of Nyssa v. Du- recognized in the context of rejecting 1st floth, 2005 WL 2387368. Amendment attacks on adult-business zoning Showing the importance of the availability of The state constitutional provision says: “No ordinances as well as direct prohibitions), it ei- judicial review in asylum cases, a unanimous law shall be passed retraining the free expres- ther fell into an exception recognized by the panel of the 9th Circuit reversed a rubber- sion of opinion, or restricting the right to speak, court for cases of “abuse” of the free speech stamp summary affirmance by the Board of Im- write, or print freely on any subject whatever; right. The state argued for a much broader ex- migration Appeals of an Immigration Judge’s but every person shall be responsible for the ception under the “abuse” rubric than the court determination that gay men do not constitute a abuse of this right.” The provision derives from was willing to tolerate, however. “particular social group” for purposes of asy- language originally drafted for the Pennsylva- A large part of the Ciancanelli decision was lum claims. Comparan v. Gonzales, 2005 WL nia Constitution of 1790, and subsequently devoted to analyzing and rejecting the state’s 2327302 (Sept. 22, 2005) (not officially pub- adopted by several states as they drafted consti- argument that Robertson was wrongly decided lished). tutions in order to apply for admission to the and that the constitutional provision should be given a narrower reading. After repeating ex- Lesbian/Gay Law Notes October 2005 199 tensive historical evidence about the intention switch Hope to intermittent status, but he re- acted under color of state law and violated his of the framers of the Oregon Constitution and fused. Hope was at his job for five years, during rights under the 4th and 14th Amendments of the meaning the provision would have had at which time he complained to all of his supervi- the U.S. Constitution and (3) the Port Authority the time of its drafting, the court concluded that sors about the way he was treated by Ortiz and of New York and New Jersey “had a de facto the drafters most likely intended to embrace a others. He claims everyone knew of the prob- policy of unconstitutionally arresting men with- natural law tradition, then prevalent in the fron- lem with Ortiz and that he could not take it any- out probable cause for public lewdness at the tier states, by which maximum liberty was rec- more. World Trade Center PATH station in order to ognized and the government’s role was limited On appeal, the employer, California Youth fulfill arrest quotas. to redress for actual harm. Under this view, an Authority, claimed there was not substantial On Nov. 18, after a four-day trial, a federal “abuse” of the right is the use of speech or other evidence to support an award of damages. The jury found in favor of Martinez and awarded expression to inflict injury on other persons, jury and Court of Appeals found that the plain- him $1,104,000 in compensatory damages. such as by defamation or fraud. Viewed in this tiff demonstrated that the conduct he suffered The defendants then moved for judgment as a light, it would be hard to conclude that nude was severe enough to alter the conditions of em- matter of law, or alternatively, a new trial, as dancing in the context of a business establish- ployment and create a hostile work environ- well as for a reduction in damages. ment that limits admission to consenting adults ment. Santos Ortiz called Hope a homo or Castel found that there was enough evidence who request such entertainment constitutes an something like it at least once a day and the on the record for a jury to reasonably conclude “abuse” of the right to freedom of expression. court cited this as one piece of substantial evi- that Martinez was arrested without probable The decisions provide a fascinating illustra- dence that the harassment was severe and per- cause, and that the “practices of the Port tion of the continuing role of state constitutional vasive. Authority [on the morning of Feb 1, 2000] dif- law as a source of more expansive protection for California Youth Authority was liable in this fered from the practices used in a routine arrest, individual rights and liberties than is afforded matter partly because they knew of the harass- and that the officers were not trained to conduct by the federal constitution’s restrictions on ment that Hope was subjected to and still did arrests during a sweep so as to comport with the state action through the 14th Amendment Due not take corrective action. They had knowledge constitutional guarantee that a person not be ar- Process clause. A.S.L. because Hope sought help from his supervisors rested” without probable cause. and informed them of what Ortiz was doing to Martinez was detained and humiliated for 19 Damages Affirmed for Harassment of Gay Prison him and they did nothing. hours after his arrest by the defendant police of- Chef Plaintiff was also awarded attorney’s fees. ficers. He testified that after the arrest he expe- Although no amount of money could compen- rienced “sleeplessness, loss of appetite, bouts The California Court of Appeals affirmed a ju- sate Hope for the verbal abuse he suffered of anxiety, discontinued participation in vari- ry’s finding in favor of a gay man in his claim of through on a daily basis, the California Court of ous social, volunteer and religious activities,” sexual orientation employment discrimination. Appeals upheld the damages he was awarded and he briefly contemplated suicide. In addi- Hope v. California Youth Authority, 2005 WL for his suffering. Hope received $917,104 in tion, Martinez did not travel to Cuba to visit his 2212049 (Cal.App.2 Dist., Sept. 13, 2005). economic damages and $1 million in non- sick mother, fearing complications barring re- The plaintiff claimed his employer violated the economic damages. Tara Scavo entry arising from the arrest, and he failed to California Fair Employment and Housing Act pursue his U.S. citizenship application fearing (FEHA) by subjecting him to derogatory re- Court Upholds Jury Verdict Against Port Authority deportation or imprisonment. marks on a constant basis. in Restroom Arrest of Gay Man Castel determined that damages should be Bruce Hope was a cook at Nelles Youth Cor- capped at $200,000 for emotional distress and rectional Facility and rose through the ranks On Sept. 2, U.S. District Judge P.Kevin Castel $160,000 for false arrest based on comparable beginning as a temporary cook and ending his affirmed a jury verdict in favor of Alejandro awards from other cases, but affirmed the jury’s tenure as a permanent cook. Hope was tor- Martinez, a gay man, on his false arrest and ma- award for $100,000 on the malicious prosecu- mented in the kitchen by his immediate super- licious prosecution claims against two police tion claim, opining that Martinez was entitled to visor Felipe Marcellino and the security officer, officers and the Port Authority of New York and this award because he had to appear “in state Santos Ortiz. Both men called him names like New Jersey. Castel remitted the compensatory trial court to defend himself from the charge of “homo,” “motherfuckin’ faggot,” and “faggot damages awarded to Martinez by more than half public lewdness, a highly stigmatizing charge.” ass bitch.” One of Hope’s supervisors, Michael (from $1,104,000 to $464,000) and granted at- Castel also affirmed the jury award for $1,000 Hedgepath, told Ortiz to stop the name calling, torney’s fees ($264,000). Martinez v. The Port for Martinez’s therapy bills and for $3,000 in but that was the only corrective action he took to Authority of New Yorkand New Jersey, 2005 WL attorneys’ fees expended by Martinez in his de- stop the discrimination. 2143333 (S.D.N.Y.). fense of the public lewdness charge. Many of Hope’s co-workers testified that On Feb. 1, 2000, from 6:05 AM to 8:30 AM, The defendants tried to limit the $264,000 they witnessed the way he was mistreated. seven men were arrested during a “police attorneys’ fees award by arguing that the plain- Hope did seek help from several supervisors sweep” for “having engaged in public mastur- tiff’s document discovery was unfruitful. They including Hedgepath. Hope was informed by bation” in the men’s room at the PATH station argue that because there was no documented Maggie Yamamoto, the food manager, that eve- concourse of the World Trade Center. Martinez evidence to support plaintiff’s assertion that ryone thinks he has AIDS because he is always was the only one who refused to plead guilty to “an anti-homosexual bias influenced the Port sick. Hope continued to advance at Nelles. He the reduced charge of disorderly conduct. Mar- Authority’s conduct,” the plaintiffs wasted took and passed a promotional exam, only to tinez was acquitted of the public lewdness their time and do not deserve compensation for have his promotion revoked after four days, al- charge during a one-day bench trial in state the unnecessary discovery efforts. However, legedly because he is just “not right” for the po- court. Castel noted that while document discovery sition. Hope did attend a meeting to address his Martinez then filed suit under 42 U.S.C. sec- may not have been particularly fruitful, it was concerns, and Ortiz was present at the meeting. tion1983 for false arrest and malicious prose- not frivolous, and therefore entitled plaintiff’s No resolution was reached. cution. Specifically, Martinez alleged three attorneys to the full amount awarded after trial. Hope was then diagnosed with HIV and be- things: (1) he was arrested and prosecuted Institutions like the Port Authority should gan missing work. Management attempted to without probable cause; (2) the police officers take notice from this decision, keeping in mind 200 October 2005 Lesbian/Gay Law Notes that gay people enjoy the same constitutional claims of harassment, if proven, would state a (who may or may not have been transsexual or rights as all other persons. No minority group valid claim. Indeed, these photos were even gay) was likely to be sympathetic to the defen- should ever be targeted as part of a sweep where known to the general inmate population. The dant due to his status as a minority and an out- there is no probable cause for arrest. Eric J. court stated that “there appears to be no more sider. The prosecutor also pointed out that Wursthorn effective way to engender horrible working con- Lewis was self-employed and worked alone, ditions for a prison guard than to reveal one of and that to be a good juror one had to work to- Cross-Dressing Prison Guard Has Action for his embarrassing secrets to the general [prison] gether with other people. The prosecutor also Harassment and Invasion of Privacy population. The cumulative effects of the fre- pointed out that Lewis was unmarried and had quent taunting endured by DePiano may have no children. The prosecutor went to great pains The issue in DePiano v. Atlantic County, 2005 created a hostile work environment.” (No kid- to say there was no intent to discriminate in any WL 214972 (U.S.Dist.Ct., D.N.J. Sept. 2), was ding, judge!) unlawful way, but merely to eliminate a juror whether a prison guard whose supervisor circu- The court recognized DePiano’s claim of in- who the prosecutor believed would be tilted to- lated photos of him in drag from his confidential vasion of privacy under section 1983 as a right ward the defendant. disciplinary file among his coworkers stated a against disclosure of information that DePiano Just as had the California courts, District cause of action for harassment and invasion of would have a right to keep private, stating that Judge Armstrong found this explanation satis- privacy under state and federal law which was “[o]n the topic of disclosing one’s sexual pro- factory. Pointing out that nobody involved at the sufficient to withstand a motion for summary clivities, the Third Circuit has for the most part, trial level knew Lewis’s sexual orientation, the judgment. District Judge Robert B. Kugler already declared the improbability that ‘the judge discounted the idea that this was sexual ruled that he did. government would have a legitimate interest in orientation discrimination, while noting that The photos of plaintiff Gregory DePiano, a disclosure of’ such information." The court California courts have held that use of peremp- prison guard at the Atlantic County Justice Fa- ruled that the defendants could show no legiti- tories to keep gay people off juries because of cility, came into the possession of the facility mate reason for showing these photos to others. their sexual orientation is a state constitutional when they were found in the purse of a female Merline’s own testimony at deposition indi- violation. “The Petitioner fails to show the acquaintance of DePiano, after her arrest in cated that he showed the photos around gratui- Prosecutor had discriminatory motive by dis- 1992. While DePiano claimed that he was tously. The testimony of several coworkers at missing Lewis specifically based on sexual ori- drugged when the photos were taken, and that deposition indicated that they had no idea why entation,” wrote Armstrong. “Petitioner cites they were taken without his permission, the they were being shown these pictures. People v. Garcia, 77 Cal. App. 4th 1269, 1275 trial judge noted that he had partaken in his This decision is narrow in scope. DePiano (2000), which holds that homosexuals consti- “cross-dressing habit” with several past girl- stated several claims which were sufficient as a tute a cognizable group. However, the appellate friends, and had attended a Halloween party in matter of law. Factual issues were raised that court found that the record ‘[did] not reveal drag. “Apparently,”, the court concluded, could only be resolved at trial. Thought Judge anything about [Lewis’s] sexual orientation.’ “dressing up in women’s clothes is, or at some Kugler made clear exactly what he thought of Petitioner has not set forth a sufficient factual point was, part of his sexual life.” The photos many of the defenses raised by the defense, it is basis for his claim that the Prosecutor dis- were circulated by Gary Merline, who became by no means certain that DePiano will prevail missed Lewis based on sexual orientation, warden of the facility in January 2000. Prior to on the merits, as several strong defenses, such therefore, his argument lacks merit. Secondly, that time, Merline, who is a named co- as statute of limitations, remain, if proven. Ste- Petitioner’s claim does not specifically state defendant in the suit, worked in the Internal Af- ven Kolodny that Lewis was impermissibly excused because fairs Department of the facility. Lewis was a ‘cross-dresser’ or a ‘transvestite.’ DePiano sued the county and Merline for Excluding Cross-Dresser From Jury Did Not Offend Even if Petitioner did specifically make this ar- harassment and violation of privacy under 42 Due Process gument, there is no federal law holding that ei- USC sec. 1983, the New Jersey Law Against ther cross-dressers or transvestites were a pro- Discrimination, N.J. Stat. Ann. 10:5–4 (LAD) Rejecting a petition for habeas corpus from tected class within the meaning of Batson. Even with regard to the claims described above, and Jimmy Lee Carter, who was convicted in a Cali- if cross-dressers and transvestites were a pro- with regard to claims of improper discipline fornia state court on charges of petty theft with a tected class, the Court finds that there were which are not of interest to our readers. prior conviction, U.S. District Judge Armstrong other more obvious race-neutral reasons for the The defendants moved for summary judg- (N.D. California), rejected Carter’s contention Prosecutor’s challenge of Lewis, i.e., Lewis’s ment under the LAD because this statute only that his trial was flawed on a wide variety of unconventional way of dressing, lack of super- prohibits discrimination based on actual or grounds, including the prosecutor’s challenge visory experience, financial hardship due to perceived sexual orientation. The court re- to seating a male juror who arrived at court potential loss of income upon serving on the jected this claim, ruling that the statute also wearing feminine dress. Carter v. Duncan, jury, and relief upon being excused to possibly prohibit harassment based on gender stereo- 2005 WL 2373572 (Sept. 27, 2005). showing a reluctance to serve as a juror.”A.S.L. typing. The court ruled that the record sup- Quoting from a decision in the case by the ported the conclusion that DePiano was sub- state appellate court, “the prosecutor excused Navy Appeals Court Rejects Constitutional jected to “severe and pervasive harassment another African-American juror, Christopher Challenge to Adultery Court Martial because of his cross-dressing.… From the rec- Lewis.… During questioning by the court and ord, one could conclude that Merline and his attorneys, Lewis explained that he works as a The due process protection for privacy recog- staff harbored negative perceptions of DePiano cosmetologist at a beauty salon as an independ- nized by the Supreme Court in Lawrence v. as a male who did not conform to the male ent contractor, and supervises no other employ- Texas would not serve to shield a military mem- stereotype because he wore women’s clothes.” ees. In chambers, the court described Lewis as ber from being prosecuted and dismissed from Though the court deemed the question of a man dressed as a woman.” When challenged the service for adultery, ruled the U.S. Navy- how those photos in question went from being on his use of a peremptory strike to remove Marine Corps Court of Criminal Appeals on part of DePiano’s Internal Affairs file to “be- Lewis from the jury pool, the prosecutor pro- Sept. 14 in U.S. v. Brown, 2005 WL 2381094 coming the worst-kept secret” in the facility vided a rather long, convoluted answer, which (Not officially published). The court did view were unclear, the court ruled that DePiano’s boiled down to the believe that a transvestite Lawrence as broadly providing constitutional Lesbian/Gay Law Notes October 2005 201 protection against criminalizing consensual such. Writing for the three judge panel granting claim, his motion would have been denied. sexual activity,“whether homosexual or hetero- the defendant’s dismissal motion, Judge Bayl- A.S.L. sexual, but reverted for its analysis to the case son emphasized a distinction between sex dis- of U.S. v. Marcum, 60 M.J. 198 (Ct. App. Armed crimination and sexual orientation discrimina- State Civil Litigation Notes Forces2004), which found that military regula- tion, pointing out that it is well established in tions would supersede such constitutional pro- federal precedents that Title VII does not apply Alabama — In December 2003, Probate Judge tection where there are “additional factors rele- to discrimination or harassment against some- Jimmy Stubbs of Elmore County, Alabama, per- vant solely in the military environment that body in the workplace because they are gay. formed a wedding ceremony for a couple who affect the nature and reach of the Lawrence lib- Webb v. Int’l Brotherhood of Electrical Workers, applied for a license as Joseph Cutcher and Pa- erty interests.” Local Union No. 654, 2005 WL 2373869 (E.D. tricia Hammon. On Sept. 19, Stubbs issued an Wrote Senior Judge Carver: “Assumingargu- Pa., Sept. 23, 2005) order “rescinding” the marriage, having dis- endo that the adulterous activity is within the Texas — While the national media was pay- covered as a result of an anonymous call to the liberty interest and that the conduct does not ing close attention to a trial on charges that court that both parties were women, and that meet any exception specifically listed in Law- Texas prison officials allowed the gangs in a Juanita Cutcher had changed her first name to rence, we nonetheless conclude that there are state prison to make a sex slave of a gay pris- Joseph two years before applying for the li- additional factors in this case that weigh oner,Judge Harmon of the U.S. District Court in cense. Stubbs sent copies of his order to the El- against constitutional protection… We found Houston dismissed a pro se complaint by an- more County District Attorney and the Sheriff. that the appellant’s conduct was both prejudi- other gay prisoner making similar sorts of alle- It will be up to law enforcement officials to de- cial to good order and discipline and service gations. Hull v. Langston, 2005 WL 2233614 cide whether the couple should be prosecuted discrediting. That alone is sufficient to remove (S.D.Tex., Sept. 14, 2005). Plaintiff Donald for defrauding the court. Alabama was among the conduct from the protection of the constitu- Hull alleged deliberate indifference by guards earlier enactors of a mini-DOMA that forbids tion. We also note that the military has a sub- and prison officials, asserting he should not same-sex marriages in the state. WSFA Radio, stantial interest in the determination and pres- have been put in general population because he Alabama, Sept. 19. It was uncertain from the ervation of marriage. Adultery can and often had come to the unit in question from a prior news report whether Joseph Cutcher might be a does directly affect the sanctity of marriage. In unit where he had been assaulted by a staff transsexual who identifies as male. particular, several pay and housing issues are member. Furthermore, Hull alleged that when Connecticut — In an action to partition resi- directly affected by the status of the service he asked to be placed in protective custody, he dential realty brought by a woman against the member’s dependents. In sum, all these factors was told that he was “too big” to be put in pro- man with whom she had been living for some convince us that the appellant’s misconduct is tective custody. Hull alleges that he was beaten time on the property in Bethel, Connecticut Su- not constitutionally protected.” and sexually assaulted by gang members, that a perior Court Judge Thomas L. Nadeau rejected Sounds like Judge Carver graduated from prison guard observed and did nothing to stop an argument by defendant Krzysztof Kaniewski one of those religiously-infected service acade- it, and that he was not given appropriate medi- that the parties could not have been joint ten- mies. Since when has the Defense Department cal treatment. Judge Harmon decided Hull’s ants because he was gay and was living in a pla- had a role in preserving the “sanctity” of any- credibility was poor because he had filed other tonic relationship with the woman, whom he thing? A.S.L. federal suits that were unsuccessful complain- characterized as a distant cousin and single ing about his treatment. mother he was helping out. Wichowska v. Federal Civil Litigation Notes Wisconsin — Chief U.S. District Judge Bar- Kaniewski, 2005 WL 2276958 (Aug. 1, 2005). bara B. Crabb (W.D.Wis.), ruling on a motion by The opinion consists mainly of detailed narra- Illinois — For an entertaining account of litiga- a state inmate for permission to proceed In tive of the trial testimony about the history of tion between gay pornography producers over forma pauperis on an 8th Amendment claim the parties’ relationship and the ownership of who has the right to sell which items in a back against certain correctional officers, held that the property. Kaniewski claimed that he actu- library that was the subject of various commer- the prisoner, Roger Godwin, who was allegedly ally had a relationship with a man who died cial transactions, see Images of the World,Inc. v. raped in his cell by another prisoner, can main- from AIDS, and that he had the plaintiff’s name Continental American Industrials, Inc., and tain an 8th Amendment claim. Godwin v. Sut- placed on certain documents at the time of clos- Conwest Resources, 2005 WL 2171193 (N.D. ton, 2005 WL 2230239 (Sept. 12, 2005). God- ing on purchase of the property because he had Ill., Aug. 30, 2005). Ever wonder who owns the win alleges that he sent letters to both named no other family members in the U.S. The judge rights to those “pre-condom classics” that are correctional officers defendants, trying to get concluded that upon foreclosure sale of the being widely advertised as newly available on himself removed from the situation because the property, plaintiff would be entitled to a portion DVD? Read about it here. other inmate was making sexually charged of the proceeds, but not the half share she was Pennsylvania — An electrical apprentice statements and threatening to sexually assault claiming. Judge Nadeau wrote that he had subjected to anti-gay harassment (but who is Godwin. Based on this, Judge Crabb found that “weighed the propriety of a 50–50 division and not himself gay) had not stated an action for it was possible that Godwin would be able to cannot deem it equitable or rational.” hostile workplace sexual harassment under Ti- prevail on his claim that the guards had exhib- Florida — In a brief jointly prepared by the tle VII of the Civil Rights Act, because it was ited deliberate indifference, leaving him at the ACLU Lesbian & Gay Rights Project, the clear from all the facts that he was targeted for mercy of a potential rapist. The ruling is un- ACLU of Florida and the national Center for harassment because he was perceived a being usual because it is quite rare for a prisoner to Lesbian Rights, opponents of a proposed Flor- gay. Plaintiff Brian Webb tried to argue the prevail on an 8th Amendment claim concern- ida Marriage Protection Amendment that would gender-stereotyping theory, pointing out that ing his treatment in the prison at any stage of bar legal recognition of same-sex couples argue the harassment began after he had his ears litigation. This is very early,even preliminary to that the proposal is unconstitutional and should pierced, a startly occurrence that inspired con- a motion to dismiss by the defendants, since the be kept off the ballot. The brief was filed in a siderable viciousness in co-workers. Nonethe- ruling was only in respect to Godwin’s request pending action before the Florida Supreme less, the U.S. District Court noted, 3rd Circuit to be allowed to proceed with filing a fee. How- Court, Advisory Opinion to the Attorney General case law does not support a claim for homopho- ever, Crabb indicated that had he not alleged re: Florida Marriage Protection Amendment, bic harassment, only for sexual harassment as the essential elements of an 8th Amendment No. SC05–1563. The brief argues that the pro- 202 October 2005 Lesbian/Gay Law Notes posal is misleading, masquerading as a mar- under no reasonable construction would the dants had beaten and strangled Araujo after riage protection measure, because Florida boundaries of Stanley extend to the download- learning that the person they had had sex with statutory law already bans same-sex marriages ing of allegedly obscene materials from a com- was genitally male. San Francisco Chronicle, in the state and so the only substantive effect of puter in a government office. It is important to Sept. 13. Talking with the press after the ver- the measure would be to go further and ban civil keep in mind that the offensive conduct at issue dict, juror Max Stern, a lawyer,said that the jury unions or domestic partnerships. A majority of is the use of interstate commerce for an illegal had rejected defense arguments that it was a Floridians have indicated support for civil un- purpose… The defendant’s argument, in effect, manslaughter case. Said Stern, “The commu- ions or domestic partnerships in opinion polls. invites this Court to extend the zone of privacy nity standard is not and cannot be that killing is Oregon — Basic Rights Oregon has filed suit recognized in Stanley to include the contents of something a reasonable person would have in Marion County Circuit Court seeking a dec- emails. However, the constitutional inquiry at done that night. This was not a manslaughter, laration that the anti-same-sex-marriage state hand does not turn on an individual right of pri- because it is not reasonable to accept this be- constitutional amendment approved by voters vacy, but on the government’s recognized right havior in response to the circumstances here. last year is itself unconstitutional. Arguments to regulate interstate commerce,” insisted This is not confronting the molester of your on the plaintiff’s motion for preliminary relief Hudson, refusing to dismiss the indictment. children or someone who raped your spouse. were scheduled to be heard on September 26. California — The Court of Appeal, 4th Dis- These events devolved into a brutal beating and The named plaintiffs are a group of same sex trict, affirmed the conviction of Peter Joseph homicide.” On the other hand, said Stern, the couples, some of whom married when Multno- Lozolla, Jr., on charges of personal infliction of jury rejected the hate crime charge because mah County was briefly giving licenses to great bodily injury in connection with his con- they believed that the defendants did not kill same-sex couples, and whose marriages have viction for robbing Jeffrey Davis, the former Araujo because of her sexual orientation, but subsequently been invalidated by the Oregon lover of his father, Peter Joseph Lozolla, Sr., in rather to “cover up a situation that had gotten Supreme Court prior to passage of the amend- May 2002. People v. Lozolla, 2005 WL out of control.”. S.F. Chronicle, Sept. 14. ment, and others have been married in Canada 2234829 (Sept. 14, 2005) (not officially pub- California — Here is the most novel attempt and seek recognition of their marriages in Ore- lished). Davis and Lozolla Sr.’s relationship we have seen to invoke Lawrence v. Texas in de- gon. The complaint and other litigation papers had broken up over Lozolla’s abusive conduct fending against criminal charges. In People v. in Martinez v. Kulongoski and Defense of Mar- blamed on his drinking problem. Shortly after Jones, 2005 WL 2160425 (Cal. Ct. App., 3rd riage Coalition PAC, No. 05C–11023, can be Lozolla Sr., moved out, Lozolla, Jr., and another Dist., Sept. 7, 2005) (not officially published), found on Basic Rights Oregon’s website. Basic man, the father of Lozolla’s girlfriend with prosecutors charged that Michael Anthony Rights Oregon predicts on its website that the whom he was living at the time, broke into the Jones had engaged in a pattern of conduct in- case will end up in the state supreme court and Davis house wearing masks, beat him severely volving getting women college students drunk take about two years to litigate to a final deci- and took various items. During the course of the and then engaging in intercourse with them sion. struggle, Davis identified one of his assailants while they were passed out. At least two women Wisconsin — Dane County Circuit Judge as Lozolla, Jr. According to the trial judge, Rob- testified that they woke up to discover Jones David T. Flanagan has ruled that local govern- ert J. McIntyre of Superior Court of Riverside performing vaginal intercourse with them. In ments cannot intervene as defendants in a law- County, “this was one of the most vicious as- none of the cases did the women give consent in suit seeking benefits for same-sex partners of saults this Court has seen where the victim ac- advance to this happening. Jones was charged public employees in the state, because under tually lived.” The appeals court rejected Lozol- under Penal Code sec. 261(a)(4), which makes state law the Department of Justice has sole la’s contention that the evidence did not it a crime to rape an unconscious person. In his authority to defend the lawsuit. Republican support his conviction, in particularly rejecting defense, Jones “hypothesizes a scenario in legislators had retained the Alliance Defense the argument that there was not great bodily in- which a woman enjoys being awakened by her Fund, a “public interest” firm devoted to op- jury because Davis fortunately did not suffer lover having intercourse with her” and argued pressing gay people at every opportunity in the serious permanent injuries as a result of the as- that by failing to allow for this contingency of courts, to represent local governments as inter- sault. He was struck on the head with a hatchet, “advance consent,” the statute fails to comply venors. Associated Press, Sept. 24. A.S.L. among other things, lost the tip of a ring finger with the due process rights of adults to engage and suffered impaired vision and facial disfig- in sex as protected by Lawrence. “We are not Criminal Litigation Notes urement. Lozolla claimed that most of the worst persuaded,” said the court, which pointed out injury was inflicted by the other person. that in any event there was no evidence that any Federal— Virginia — U.S. District Judge Hud- California — In a widely-watched murder of the complaining witnesses had consented in son (E.D. Va.) Ruled in U.S. v. Whorley, 2005 trial, an Alameda County jury convicted Mi- advance to having intercourse with Jones. WL 2179121 (Aug. 18, 2005), that federal ob- chael Magidson and Jose Merel of second de- New Mexico —InState v. Jensen, 2005 WL scenity statutes were not unconstitutionally in- gree murder in the death of transgender teen- 2148538 (N.M. Ct. App., June 23, 2005, cert. voked to prosecute Dwight Whorley for down- ager Gwen Araujo, but rejected prosecutors’ granted, Aug. 6, 2005), the Court of Appeals loading onto his office computer at the Virginia contention that the murder was a hate crime. ruled that David Jensen was not denied effec- Employment Commission “digital depictions of The panel deadlocked on a murder conviction tive assistance of counsel when his attorney Japanese anime cartoons of a prepubescent mi- of the third defendant, Jason Cazares. Trans- failed to secure a jury instruction on consent in nor, and other child pornography, from the gender rights activists expressed satisfaction his prosecution for committing “criminal sex- internet” and for accessing through his office that the jury rejected the manslaughter defense, ual penetration” and “assault with intent to computer “obscene emails from an interactive but were disappointed on the deadlock in the commit CSP on a household member” against computer service.” Whorley argued that Stan- Cazares case and the failure of the jury to con- his wife. Departing from the majority’s view, ley v. Georgia, 394 U.S. 557 (1969), which rec- vict on first degree murder charges. Sentencing Judge Ira Robinson observed, in light of Law- ognizes 1st Amendment protection for the pri- will take place at a later date, and prosecutors rence v. Texas, that the consent issue was not so vate possession of obscene matter, should have yet to decide whether to retry Cazares. Po- clear as the majority insisted. (The majority had govern this case, but Judge Hudson disagreed, tential sentences in the case could run from 15 said that so long as force was used by Jensen to contending that Stanley applied strictly to pos- years to life in prison. The prosecution pre- have intercourse with his wife, there was no session of such matter in the home. “Clearly, sented evidence that the two convicted defen- need for a consent instruction.) “As anyone who Lesbian/Gay Law Notes October 2005 203 has read the hundreds of medical and socio- vestigators quickly figured out that it was not a pursue complaints of discrimination on the ba- logical reports and studies, or even watched suicide based on tell-tale signs of blood and the sis of sexual orientation in the federal service. ‘CSI’ or a similar television show, knows,” way the corpse was holding the pistol. It didn’t The White House has stated its disagreement wrote Robinson, “there are people who will- help Hopkins’ case any that Lumpkin’s grand- with Bloch’s interpretation of the authority of ingly participate in what might be called ‘rough mother testified that the alleged suicide note his agency to deal with discrimination com- sex,’ which would contain elements of force, or was not in Lumpkin’s handwriting, or that po- plaints. even violence. It could probably qualify as lice found a notebook in the residence in which Federal — The House of Representatives ap- common knowledge that these people do so on a somebody had made earlier drafts of the sui- proved a proposed Children’s Safety Act by a consensual basis and apparently enjoy some cide note. A jury convicted Lumpkin of first de- vote of 371–52 on Sept. 14, incorporating an sense of brutality. An element of force is very gree felony murder and especially aggravated expansion of the existing federal hate crime law much a part of it. Therefore, having consensual robbery and he received an extensive prison to add “sexual orientation, gender and disabil- sexual intercourse, containing both force and sentence. On Sept. 23, the Court of Criminal ity” to the list of motivations for which sentence violence, may not be illegal. That is what the Appeals of Tennessee affirmed the sentence, enhancement might be imposed under federal jury, properly instructed, must decide.” Robin- State v. Hopkins, 2005 WL 2349061, finding law for violent felonies. The White House ex- son noted that, of course, rape is legitimately contrary to Hopkins’ argument on appeal that pressed support for the measure, which now criminalized, but questioned the state’s pur- there was plenty of record evidence from which goes to the Senate. While some gay rights pose in criminalizing consensual rough sex, the jury could find satisfied all the elements of groups celebrated the passage of what could i.e., S&M sex, especially in light of Lawrence‘s the charged offenses. The main point of legal become the first really gay-affirmative federal protection for the sexual autonomy of consent- analysis in the court’s opinion concerns statute with any operational teeth, others ing adults. Robinson concurred in the majori- whether the elements of felony murder are sat- pointed out that the main focus of the bill was to ty’s conclusion that defendent was not deprived isfied where the underlying felony takes place drastically increase the penalties for individu- of effective assistance of counsel because of the after the murder. als convicted under federal law of sexual of- timing of the trial with respect to developments Wisconsin — The Minnesota Court of Ap- fenses against children. Associated Press, Sept. on this issue, but did not “agree with the peals held that a man who pled guilty to a mis- 14. majority’s conclusion that Defendant does not demeanor consensual sodomy charge could not California — Claiming that the measure have a ‘true affirmative defense’ here.” Thus, raise a constitutional challenge to his convic- would be impossible to enforce, California Gov- Robinson joins the tiny number of U.S. judges tion through a post-conviction relief proceed- ernor Arnold Schwarzenegger vetoed AB 866, a who appear to have some sympathy for the ar- ing, even though the sodomy law was declared bill intended to add “sexual orientation” and gument that consensual S&M sex may be con- unconstitutional after his direct appeal of his “gender identity” to the state’s Fair Political stitutionally protected. conviction had been decided against him. It Practice Act, which provides a code of conduct North Carolina — In a ruling that very belat- was irrelevant to the court that in Lawrence v. for elections specifying impermissible grounds edly has been posted for publication by Texas the U.S. Supreme Court overruled Bowers for appeals to negative prejudice during politi- Westlaw, the North Carolina Court of Appeals v. Hardwick and in effect declared that all cal campaigns. The statute provides a mecha- ruled in State v. Pope, 2005 WL 2242212 (Feb. criminal laws against adult consensual sodomy nism for competing candidates to take a formal 15, 2005), that Lawrence v. Texas was irrelevant must be considered to have been unconstitu- pledge that they will not make such prejudicial to a claim that the prostitution and solicitation tional all along. After all, formal rules must be appeals, providing a means for a truce that laws of North Carolina were unconstitutional. followed in any event. The brief opinion has a takes such kinds of campaign tactics out of the As have other courts faced with similar claims Dickensian quality about it, and helps to ex- picture for the particular election it covers. over the past year and a half, the North Carolina plain why the public opinion of law and lawyers California Assembly Speaker pro tem Leland court took the position that Lawrence was a nar- tends to be low, or at best confused. No wonder Yee, the chief sponsor of the measure, com- row ruling solely on the question whether pri- the court designated this opinion as “unpub- mented, “Quite frankly, I am outraged that the vate adult consensual sodomy could be subject lished.” Kemmer v. State of Minnesota, 2005 Governor vetoed a bill that protects gay and les- to criminal prosecution, and did not address the WL 2277253 (Minn. Ct. App., Sept. 20, 2005). bian candidates from facing discrimination and questions of public conduct or prostitution. As A.S.L. hate during a campaign. It is unconscionable such, this is yet another in a growing body of that the Governor of California would send a cases construing Lawrence narrowly and refus- Legislative Notes message that it is ok to foster campaigns that ing to see it as setting the stage for a broad right create fear and intimidation upon the LGBT of personal autonomy for adults in matters of Federal — The House Government Reform community.” Equality California Press Re- sexual gratification. Committee has approved H.R. 3128, the pro- lease, September 7. But Schwarzenegger did Tennessee — Jeffrey Hopkins supported posed Clarification of Federal Employment approve three other measures on the gay rights himself by charging other men to have sex with Protections Act, by voice vote, according to a agenda: AB 1400, which amends the Unruh him and selling them cocaine. On Dec. 20, Sept. 22 report in the BNA Daily Labor Report. Civil Rights Act to make clear that places of 2003, he shot to death Ricky Lumpkin, an older The bill, introduced by Rep. Henry Waxman public accommodation may not discriminate man with whom he was living. Lumpkin paid (D-Calif.), would add “sexual orientation” to on the basis of sexual orientation, gender iden- Hopkins to have sex with him and wanted to the list of prohibited bases for discrimination tity or marital status; AB 1586, which forbids have a monogamous same-sex partnership with within the federal civil service by amending 5 denial of insurance coverage on the basis of Hopkins, but Hopkins did not want to have a re- U.S.C. sec. 2302(b)(1), which covers discrimi- gender or gender identity; and SB 973, in- lationship with a man and only would have sex nation in the federal sector. Waxman’s bill was tended to fill a gap left by the state’s domestic with a man for money. They got into an argu- introduced in reaction to testimony before an- partnership law to protect public employees ment on the fatal day and after the shooting other committee last spring by Scott Bloch, the from losing state retirement benefits upon the Hopkins tried to make it look as if Lumpkin had head of the Office of Special Counsel, in which death of their domestic partners. In many ways committed suicide. Then he took Lumpkin’s Bloch said he had removed references to “sex- each of these laws was a major achievement, in truck and some other effects and fled south- ual orientation” on the agency’s website be- some cases of first in the nation significance, wards. After the body was discovered, crime in- cause there was no legislative authorization to but the news of their signing on Sept. 29 was 204 October 2005 Lesbian/Gay Law Notes overshadowed by the governor’s veto of the which is the dominant political force in Utah, is ing to one blog report we saw, and assert that it same-sex marriage bill, as reported above. adamantly opposed to homosexuality and gay is appropriate to “out” him because of his over- Florida — The Miami Beach City Commis- rights. The Associated Press reported on Sept. whelmingly anti-gay voting record in the sion gave tentative approval on Sept. 8 to a pro- 24 that the Salt Lake City Council was planning House. Dreier voted for DOMA and to ban gay posed ordinance that would require large city to pass its own policy that would supersede that adoptions in the District of Columbia. He has, contractors to provide domestic partnership of the mayor, ironically so because the mayor’s however, opposed the Federal Marriage benefits for employees who work directly on decision to go ahead on his own arose from frus- Amendment. Unfortunately, Rep. Blunt is con- Miami Beach projects. A final vote is scheduled tration over the failure of the Council to enact a sistently more outspokenly anti-gay than for Oct. 19. Miami Beach established a domes- domestic partnership policy. Dreier, although few can “out-gay” TomDeLay, tic partnership registry program late in 2004. Washington — The Spokane City Council who has been the most persistent champion of Miami Herald, Sept. 8. voted that domestic partners of city employees the Federal Marriage Amendment among Re- Massachusetts — Meeting jointly as a consti- should be eligible for medical benefits, reject- publican leaders in the House. 365Gay.com, tutional convention, the legislature overwhelm- ing by a 5–2 vote a citizen petition to put the Sept. 28. ing rejected a proposed constitutional amend- question to a citywide referendum before it can Military Policy — When President-Elect ment that would ban same-sex marriages be implemented. A.S.L. Bill Clinton proposed ending the ban on mili- prospectively and authorize the establishment tary service by gay people back in 1992, the re- of civil unions for same-sex partners. The Law & Society Notes sponse of Pentagon officials was explosive. amendment passed by a narrow margin in the They argued that having openly-gay people prior legislature, but support for it fell apart Sexual Minority Data — The National Center serve would fatally undermine ability of the from both directions, leading to the 157–39 for Health Statistics has released the results of a military to get its mission accomplished, and negative vote on Sept. 14. Proponents of same- national survey of sexual practices. Among persuaded Congress to adopt the infamous sex marriage were obviously opposed to a other things, the report indicates that more than “don’t ask, don’t tell” policy, under which only measure that would end same-sex marriage. half of all teenagers aged 15 to 19 have had oral totally closeted gay people are allowed to serve. Many of those who had voted for the amend- sex, indicating that oral sex is a major part of the Discharges for homosexuality went up, even ment last time had decided to oppose it because sexual repertory of American youth. About four though this was touted as a “compromise” by they also oppose civil unions, and hoped that an percent of adults in the survey identified as ho- comparison to the prior policy that required alternative anti-marriage amendment might be mosexual or bisexual. In a surprising reversal discharge of all “homosexuals.” Among those enacted through the petitioning process (see from earlier studies, however, it appeared that who studied military policy, however, it was below for more on this). Associated Press, Sept. more women aged 18 to 29 reported having had well known that in times of conflict and staffing 14. at least one homosexual experience than men. crisis, the military was wont to overlook homo- New Hampshire — The Union Leader (Sept. Among adults 15–44, almost 3 percent of men sexuality and retain members who were doing a 20) reported that public school employees in and 4 percent of women claimed to have had a creditable job, giving the lie to their argument Deering, Hillsborough, Windsor and Washing- same sex experience in the prior year, while that having gay people serving alongside non- ton will be able to add same-sex partners to about 6 percent of men and 11 percent of gay people could not work. Officially,the Penta- their insurance at their own expense as a result women reported having had such experiences gon has always denied having such practices, of a vote on Sept. 19 by the governing board of during their lifetime. A much smaller percent- but the current staffing crisis due to the Iraq School Administrative Unit 34. The vote was age reported bisexuality, i.e., having had sexual War has again given the lie to these denials. As 6–1. The board emphasized that taxpayer experiences with both men and women during the Washington Blade reported on September money was not being spent to provide partner- the prior year. These data contradict the results 23, members of the Army Reserve and the Na- ship benefits, but partners would save money of sexual practice studies going all the way tional Guard who told their commanders that by being included in the group insurance plan back to the Kinsey Reports of mid–20th cen- they were gay were nonetheless “routinely con- rather than having to buy individual coverage tury which, together with almost all subsequent verted into active duty status and sent to the on their own. studies, had confidently asserted that homo- Iraq war and other high priority military assign- Utah — Salt Lake City — This is really a sexuality was more prevalent among men than ments,” according to Kim Waldron, identified quasi-legislative note. On September 21, Salt women. Could this have changed over the past by the Blade as a “civilian who works for the Lake City Mayor Rocky Anderson signed an ex- half century, or is the newest survey just more U.S. Army Forces Command at Ft. McPherson, ecutive order extending health benefits to do- accurate than the old ones? Newspaper reports Georgia. Indeed, Waldronconfirmed, this prac- mestic partners of municipal employees, re- did not describe the methodology of the survey, tice is specifically authorized under a Forces gardless of sex. But the Utah Public Employees beyond indicating that subjects were inter- command regulation issued in 1999. The con- Health Program, fearing that the mayor’s action viewed by phone and only women were used as firmation came in response to a news release may be ultra vires, is seeking a declaratory interviewers. New York Times, Sept. 16. from the Center for the Study of Sexual Minori- judgement from the 3rd District Court of Utah. Governing from the Closet? — Upon indict- ties in the Military, which is affiliated with the The city could also file its own lawsuit to seek ment of campaign offenses in Texas, Rep. Tom University of California at Santa Barbara. The an order requiring the Program to allow domes- DeLay stepped down from his post as Republi- center discovered the Force Command docu- tic partners to enroll. Some angry state legisla- can leader of the House. It was reported that ment while providing assistance to ABC televi- tors have vowed to take action to overrule the Speaker Dennis Hastert was poised to appoint sion staff working on a “Nightline” segment on mayor’s order, but Governor Jon Huntsman, Jr., Rep. David Dreier, a California representative, gays in the military. indicated he would not take any action, since he to take Delay’s place, but then appointed in- Corporate Sector — The Human Rights considered this to be a municipal policy matter stead Rep. Roy Blunt of Missouri. Rumor was Campaign Foundation, the educational wing of not of concern to the state government. Hunts- that Hastert by-passed Dreier because Dreier HRC, announced that its Corporate Equality man also stated he had no plans to follow An- has been the subject of persistent rumors that Index survey of more than 400 large U.S. corpo- derson’s example and provide domestic part- he is gay and partnered with his male chief of rations yielded an all-time high number of 101 nership benefits for state employees. Salt Lake staff. Various media outlets are known to be large companies that achieved a perfect score. Tribune, Sept. 22 and 23. The Mormon Church, planning “outing” stories about Dreier, accord- The index rates companies on seven factors: in- Lesbian/Gay Law Notes October 2005 205 cluding sexual orientation in non- and requested coverage for her spouse. The de- International Notes discrimination policies, including gender iden- cision was made locally. A spokesperson for the tity or some equivalent in such policies, offer- International Brotherhood of Teamsters said Anglican Communion — The world-wide An- ing domestic partnership benefits, recognizing that local unions administer their own funds glican Communion faces a split over the issue LGBT employee groups, offering diversity and make such decisions. Newsday, Sept. 16. of homosexuality, as the Nigerian Church an- training that includes sexual orientation and California — The Ontario Christian School nounced that it was formally splitting with the gender identity issues, marketing in a respect- in Ontario, California, has expelled a 14–year- Church of England, cutting all ties with the ful manner to the LGBT community, and re- old student because her parents are a lesbian center of the communion and deleting all refer- fraining from corporate action that would un- couple, according to an Associated Press report ences in its religious constitution to the formal dermine the goal of LGBT equality (by, for on Sept. 23. The school’s superintendent, head of the Anglican Church, the Archbishop of example, not giving to anti-LGBT organizations Leonard Stob, wrote to Tina Clark, the mother Canterbury. 365Gay.com, Sept. 19. or causes). The foundation’s report is available of the expelled student, “Your family does not Roman Catholic Church — The world press on-line at www.hrc.org, for those who want to do meet the policies of admission,” which require reported that Pope Benedict XVI is poised to some comparison shopping before deciding that a parent may not engage in practices “im- approve a formal policy statement banning all where to send their business. ••• Gender PAC moral or inconsistent with a positive Christian homosexuals from service as priests in the announced that the number of corporations that life style, such as cohabitating without mar- Church, regardless of their ability or willing- have added gender identity or expression to riage or in a homosexual relationship.” One ness to maintain celibacy. Amidst furious com- their non-discrimination policies has sur- wonders why a lesbian couple would want to mentary about how this would result in a severe passed 100, with the recent additions of Ray- send their teenage daughter to attend a school manpower shortage in the church due to the theon, DaimlerChrysler, Credit Suisse First that maintains such policies. According to the high estimates on homosexuality among the Boston, and Kaiser Permanente. (September 27 story, Tina Clark and her partner have been to- Catholic clergy, some commentators pointed press release) ••• The Miami Herald reported gether for 22 years and have three daughters. out that the proposed document would be pro- on Sept. 19 that Lennar Corp, a Fortune–500 The issue only came up when their daughter at spective only, focused on the process of decid- construction company, has added sexual orien- the school attracted the attention of administra- ing who can enroll in seminaries, and that en- tation to its non-discrimination policy. Accord- tors due to some disciplinary infraction. May forcement would be left to local officials who ing to Equality Forum, a gay rights group based we be permitted to question whether the school would probably be inclined toward lax enforce- in Philadelphia that monitors the issue, 92 per- administrators are acting in the spirit of true ment (since so many of them are closeted gay cent of the Fortune 500 largest US corporations Christianity? But then again, how would such a men?). Indeed, one blog we saw on the subject now forbid sexual orientation discrimination by spirit be identified when the Roman Catholic (maintained by a prominent gay Catholic col- formal internal policies. Among the few corpo- Church is reputedly poised to adopt a policy umnist) insinuated that things would get worse rations without such policies are: Exxon Mobil, banning “homosexuals” from entering the for gays now that a heterosexual pope had been Halliburton, Assurant, Echostar Communica- priesthood, regardless of their willingness or succeeded by....but we dare not speak further. tions, and Wendy’s. Mobil had a non- ability to under the vows of chastity uniformly Austria — Acknowledging Austria’s embar- discrimination policy, but it was rescinded after required of all those men who enter the chur- rassing defeats in the European Court of Hu- Mobil merged with Exxon, which did not have ch’s service in that capacity? What would Jesus man Rights, Austria’s Federal President, Dr. such a policy.Mobil is one of the few companies say? Heinz Fischer, has called on the Minister of that have actually rescinded a domestic partner Massachusetts — Rejecting arguments from Justice, Karin Gastinger, to use her pardon benefits policy, at the direction of Exxon after gay rights groups that it was an improper at- authority liberally to address the lingering ef- the merger. Now we know where to buy our tempt to overrule a Supreme Court decision, At- fects of Austria’s former anti-gay legislation. gasoline... ••• And add another. On Sept. 30, torney General Thomas Reilly announced on For example, 1,434 men and women are still the St. Louis Post-Dispatch reported that Emer- September 7 that a proposed constitutional registered in a national registry of sex offenders son, another Fortune–500 corporation, an- amendment initiative to ban same-sex mar- for convictions under the now-repealed anti- nounced it would add sexual orientation to its riage can appear on the ballot if sufficient sig- gay criminal codes, and gay rights activists equal opportunity statement. Proxy campaigns natures are collected and at least 25 members have called for pardons in those cases which seeking such a change have been conducted at of two successive legislatures vote to allow it to the government has been reluctant to give. Emerson since 2001, and most recently, in appear there, in November 2008. If the meas- (Press release, 9/15/05, from the Platform 2005, 34 percent of the shares were voted in fa- ure were to pass, it would have the effect of Against Article 209, an Austrian gay rights vor of the gay rights resolution, reflecting the overruling the Supreme Judicial Court’s opin- group) recent decision by Institutional Shareholder ion in Goodridge, the November 2003 ruling Australia — The Sunday Times (Western Services (ISS), which advises institutional in- that ordered the state to comply with state con- Australia) reports a historic first: a gay male vestors on how to vote in proxy contests, that the stitutional requirements and allow same-sex couple has been approved to be adoptive par- inclusion of sexual orientation has become so couples to marry. However, the sponsors of the ents by the Department for Community Devel- mainstream that it should be supported by in- measure disclaim any interest in retroactive ef- opment, the agency responsible for such deter- stitutional investors. fect, so those same-sex couples who have been minations. This is just the first hurdle for the Labor Movement — Teamsters Local married beginning in 2003 would remain mar- couples, because the birth mother of the child 295/Local 851, a combined local union that ried for purposes of Massachusetts law. The has to approve any foster care placements or represents workers at New YorkCity’s Kennedy proponents need to gather 65,825 signatures on adoptions. The announcement provoked out- Airport, has agreed to recognize a same-sex a rather tight schedule in order to qualify to put rage from anti-gay legislators. (Sept. 11). couple married in Canada as spouses for pur- their proposed amendment before the legisla- China — Hong Kong — The Standard poses of the union’s health plan. Marie Sardone ture. There were hopes that the signatures (Sept. 30) reported that the Department of Jus- and Dolores Damone married in Toronto in could not be found, in light of the equanimity tice has received intense pressure from Chris- April. Upon their return to New York City, Da- with which same-sex marriages are being re- tian groups to appeal the Aug. 24 High Court mone, who is represented by the union on her ceived around the state now as “old news.” ruling on Hong Kong’s sodomy law. In that job, submitted a copy of the marriage license A.S.L. case, the court ruled that the law impermissibly 206 October 2005 Lesbian/Gay Law Notes discriminated against homosexuals by setting a jail but was released last year when an appeals governing coalition will appoint a special com- higher age of consent than for heterosexuals. A court quashed the sodomy conviction, but he mission to study the matter as a way to paper source told the newspaper that the Department remains banned from seeking public office un- over differences. had been advised not to appeal by a “profes- til 2009 and spends his time now lecturing at Russian Federation — The Moscow Times sional source,” but would appeal nonetheless universities in the U.S. and U.K. He has been (Sept. 30) reported that a gay man has tri- due to the political pressure. successfully litigious recently, winning a judg- umphed in a discrimination case decided by a Iran — Gay City News, a weekly newspaper ment of $1.2 million against the author of a St. Petersburg court. The gay man had applied in New YorkCity,reported on Sept. 22 about the book that accused him of fathering a child out of to enroll in a training course for railroad con- experiences of Amir, a 22–year-old gay Iranian wedlock, an assertion he disproved through a ductors with the Oktyabrskaya Railroad, but who is currently a refugee in Turkey seeking DNA test, as well as winning an official apology was rejected at the instance of the railroad’s asylum in some country that is gay-friendly. from a former police chief charged with beating medical staff, which noted that his military Amir reported that there is extensive surveil- him during his imprisonment. In countries with service record included a statement that he suf- lance and harassment of gay men in Iran. He sodomy laws, such as Malaysia, a false imputa- fered from a mental disorder,“perverse psycho- was arrested at a gay party and subjected to tion of homosexuality would be considered per pathy,” which was at the time (1992) the term brutal torture by a semi-official agency called se slander. (Indeed, despite the demise of sod- used in military records to denote homosexual the “Office for Promotion of Virtue and Prohibi- omy laws in the U.S. as a result of Lawrence v. orientation. (Recall that under U.S. Immigra- tion of Vice.” He was subjected to frequent har- Texas, some courts still take the position that a tion Law prior to 1990, all gay people were clas- assment by police officials, and was told by a false imputation of homosexuality is per se de- sified as “sexual psychopaths” afflicted with judge that if there was any medical evidence famatory on grounds of social disapproval.) “sexual deviation.”) The disappointed appli- that he had been a receptive party in anal sex, New Zealand — The Syndey Star Observer cant, who was permitted to sue anonymously, he would be condemned to death. He was reported on Sept. 22 that New Zealand will achieved vindication when the court stated that threatened by police officers with execution, have a record number of openly LGBT mem- rejection on these grounds was unlawful. The similar to the two gay Iranian youths whose re- bers of its parliament as a result of recently- court said that the practice of using military cent execution sparked world-wide protest. conducted national elections, with at least five records to violate human rights was improper; Amir asserted that it was believed among gay and possibly six depending upon the counting that military records are compiled only for use Iranians that the two youths in question were of absentee ballots. On the Labour List are Tim within the military and should not be used with not guilty of raping a minor. Amir said that gay Barnett, credited with being the main force be- respect to civilian employment. Defending the men interrogated by the police are tortured un- hind the recently enacted Civil Union Act, railroad’s actions, its head doctor told the news- til they agree to confess to trumped-up charges Chris Carter, Georgina Beyer (the only trans- paper, “We have instructions not to allow any- of that sort, and then are prosecuted on the gender member), and Maryan Street, the first one with mental problems to do work that in- charges. The full story can be obtained on the openly-lesbian candidate to be newly elected. volves certain risks, such as being a train Gay City News website. (There have been lesbian members in the past, conductor.” The Sept. 20 ruling ordered the Italy — A flap over same-sex marriage but they came out after beginning their parlia- railroad to accept the plaintiff’s application, if erupted when Romano Prodi, a former presi- mentary service.) The National Party list in- he was still interested in applying. dent of the European Commission who is ex- cludes Chris Finlayson. Still to be determined Spain — The conservative Popular Party is pected to lead a center-left coalition into politi- is whether Labourite Charles Chauvel will also attempting to get the nation’s Constitutional cal battle with Prime Minister Silvio be elected. This will be the first time that there Court to declare the recently enacted law open- Berlusconi’s rightist party in next spring’s gen- are openly LGBT members from both the gov- ing up marriage to same-sex partners to be un- eral election, announced that if elected he erning party and the leading opposition party. constitutional. The argument, which has been would attempt to extend certain rights to same- New Zealand — The Labour Party caucus unsuccessfully raised by some individual mag- sex partners. In the ensuing controversy, it ap- has refused to throw its support behind istrates in recent months, is that references in peared that Prodi was not promising to go so far Georgina Beyer’s proposal to amend the Hu- the Constitution make clear that marriage is a as Spain, which enacted same-sex marriage, man Rights Act to add “gender identity” as a man-woman union only, including most promi- but was actually thinking of more modest re- prohibited ground for discrimination. The nently Art. 32 of the Constitution which states forms to address the failure of Italian law to ac- measure had been ridiculed by an opposition that “men and women have the right to marry cord any rights to common law couples, and party member as outlawing discrimination with full legal equality,” a provision apparently presumably same-sex couples could be in- “against those who cross-dress in the work- adopted to do away with formal inequality of the cluded in such reforms. This was not enough of place. Next we will have Priscilla Queen of the sexes in the context of marriage. Defenders of a retreat to satisfy the Catholic Church, how- Desert in the classroom.” Sounds like a lively the marriage law argue that this provision was ever, which stated adamant opposition to any lesson to us... not meant to ban anybody from marrying, but change in Italian law that would accord any le- Norway — Representatives of various par- solely to guarantee equality of the sexes within gal significance to unmarried couples. Interna- ties negotiating towards the formation of a new the context of marriage. Despite all the public- tional Herald Tribune, Sept. 19. ruling coalition in the Norwegian Parliament ity and hullabaloo about the issue, it was re- Malaysia — Anwar Ibrahim, the leader of have put same-sex marriage at the center of ported that only 27 same-sex couples had actu- the opposition party, has demanded an apology their negotiations, according to a report from ally married since the new law went into effect from former Prime Minister Mahathir Mo- the Norwegian news website Aftenposten on on July 3. AKI, Italy, Sept. 19; El Pais, Sept. 20. hamed and is seeking damages in a defamation Sept. 29. The environmentalist and socialist Uganda — President Yoweri Museveni has action. Ibrahim had formerly been a member of potential coalition partners have endorsed up- signed a constitutional amendment banning Mahathir’s government, but was prosecuted on grading the country’s existing partnership reg- same-sex marriage in his country, and making sodomy charges and was characterized by Ma- istration system to marriage, but the Center it a crime for same-sex couples to attempt to hathir as being gay, which Ibrahim denies. Party has no strong stand on the marriage issue marry, according to a Sept. 29 on-line news re- Ibrahim’s conviction had been overturned by and has not been willing to commit to including port. Uganda still has a sodomy law that derives the appellate courts. According to a report by it in the coalition legislative program without from British colonial times. Reuters on Sept. 23, Anwar spent six years in further study. The prediction is that the new Lesbian/Gay Law Notes October 2005 207 United Kingdom — The Ministry of Defence mission, a body that submits names of candi- ommendation of Spagnoletti came at a time decided that so long as they were allowing dates for appointment to the D.C. Superior when “the Bush administration’s last remain- openly-gay members to serve, they might as Court, the city’s trial court, has recommended ing high level appointee who self-identified as well allow openly-gay couples to live in quar- the district’s Attorney General, openly-gay at- gay AIDS adviser Dr. Joseph O’Neill left the ters provided for married military personnel. torney Robert Spagnoletti, for appointment to government, leaving no openly-gay people in The move results from the imminent going into the bench. Spagnoletti was appointed to his high level Bush administration appointments. effect of the U.K.’s Civil Partnership Act, under current position by Mayor Anthony Williams Spokespersons for organizations in Bush’s which same-sex couples will be able to enter after having served as a prosecutor in city’s le- right-wing base have stated outspoken opposi- into legally recognized partnerships. The Army gal department for 13 years. He was first rec- tion to the appointment of any openly-gay peo- and the Royal Navy have both announced that ommended for appointment to the Superior ple by the president, but the White House has they will allow gay personnel who are in civil Court in 2000 during the final months of the insisted that Bush considers sexual orientation partnerships to occupy married staff quarters. Clinton Administration, but was not appointed to be irrelevant, and he is concerned only with Daily Mail, Sept. 12. at that time. The Commission reports three qualifications. White House spokesperson Zanzibar — Determined to stamp out homo- names of candidates to President George W. Maria Tamburri told the Blade: “The president sexuality once and for all, and blissfully igno- Bush, who has the appointment power. Al- believes the most qualified people should be rant of the lessons of history, the government of though Bush has appointed openly-gay people chosen for important positions such as judge- Zanzibar is drafting new legislation to authorize to other government positions, he has not previ- ships.” If Bush decides not to appoint one of the life sentences for consensual sodomy by men, ously appointed any openly-gay people to the three candidates submitted by the commission, and to ban same-sex marriage, just in case any- federal judiciary. The D.C. Superior Court is a he can request additional names from the com- body is getting any bright ideas along those municipal court, and one would think that local mission. Spagnoletti would be a controversial lines. BBC, via Addis Tribune, Sept. 13. A.S.L. elected officials would have the appointment choice for the right wing, not only because he is power, but under the statutes governing D.C.’s openly-gay but because he has advised the mu- Professional and Movement Notes municipal government, Congress decided to nicipal government affirmatively on recogni- treat the district’s courts as federal courts and tion of same-sex couples married or civilly The Washington Blade reported on Sept. 23 to leave the appointment authority with the united in other jurisdictions, a position anath- that the District of Columbia Nominating Com- president. The Blade mentioned that the rec- ema to the noisiest of Bush’s right-wing sup- porters. A.S.L. HIV/AIDS & RELATED LEGAL NOTES

HIV/AIDS Litigation Notes oner Elliott Rollins was prosecuted on felony dering Rollins to get an “AIDStest.” Wehave to battery charges for spitting on corrections offi- wonder why this case was designated as not of- Federal — Pennsylvania —InU.S. v. Watson, cers. Upon his conviction, the prosecutor asked ficially published. Judging by the number of 2005 WL 2159862 (E.D. Pa., Aug. 29, 2005), that he be required to submit to HIV testing, “unpublished” appellate decisions we have re- the court filed an opinion explaining its sen- and the trial judge so ordered. The prosecutor ported over the past few years reversing Califor- tence of a man convicted of bank robbery be- purported to base the request on Section nia trial judges who seem extraordinarily eager cause the defendant has appealed the sentence. 1202.1 of the Penal Code, which authorizes to order HIV testing without statutory authority, One of the grounds for appeal of the 120 months courts to order testing when defendants are it strikes us that official publication of such sentence is that the defendant is HIV+. Judge convicted of various listed sexual offenses in opinions might have a salutary effect. Rufe pointed out that Watsonwas a professional cases that involve conduct that could transmit Indiana — The Court of Appeals of Indiana bank robber who had been HIV+ for twenty HIV.The court of appeal observed that Rollins affirmed a voluntary manslaughter conviction years and was managing his condition through was not convicted of a sexual offense. Even in and enhanced sentence for Julie Ann Robeson, medication. Rufe did provide a downward de- California, where it sometimes seems every- who fatally poisoned her boyfriend, Darren parture from the sentence that would have been thing is sexualized (at least in Hollywood), they Johnson, after he told her that he believed he derived at by application of the sentencing have not yet decided formally to classify spit- was HIV+ as a result of an affair with some- guidelines in recognition of Watson’s serious ting as a sexual act. Consequently, there is no body else and that he had probably infected medical condition, and noted that it was possi- statutory authorization for this test. But the Robeson through unprotected sex. Robeson v. ble that an HIV+ person might die in prison state argued on appeal based on a different stat- State, 2005 WL 2373546 (Sept. 28, 2005). while serving a ten year sentence. Nonetheless, ute, section 4505.1, which, argued the state, Wrote Judge Baker for the court, “Robeson be- Rufe contacted the prison authorities to com- authorizes testing if there is “proper justifica- came furious, and she and Johnson argued. municate concern that Watson received appro- tion for a test of an offender’s blood for commu- Robeson then told Johnson that he needed to priate medical treatment in prison and stated nicable diseases.” The problem, as the court calm down, so she gave him between six and confidence that the Bureau of Prisons was ca- observed, is that this provision lists various dis- eight Xanax that had been prescribed to her, pable of providing such treatment. Evidently eases, but does not list HIV infection or AIDS. believing that this dosage would harm Johnson. Judge Rufe anticipated that Watson will argue “While the People’s argument has a great deal Later,Robeson gave Johnson Seoquel and more on appeal that the downward departure was not of appeal,” wrote Justice Nicholson for the Xanax, knowing that it would be a lethal dos- adequate in light of his condition, but Watson court, “we simply cannot find that section age. Robeson then fell asleep on the ouch. emphasized the career criminal aspect of the 1202.1 is ambiguous. It says what it says. Fur- When she awoke at 1:30 a.m., she found John- case as well as the threat of violence that Wat- ther, section 4501.1 does not say ‘communic- son passed out and breathing heavily. Robeson son used in robbing the bank in question. able diseases’ and does not include AIDS in the knew that Johnson was overdosing but took no California — Again a knee-jerk HIV testing diseases it requires testing for.” Finding that action to assist him. Robeson then went back to order is reversed by a California appellate Rollins’ conduct did not come within the re- sleep, and when she awoke at 5:30 a.m., John- court, in People v. Rollins, 2005 WL 2143630 quirements of the HIV testing provision, the ap- son was dead.” Robeson pled to a manslaughter (Cal. App., 3rd Dist., Sept. 6, 2005). State pris- peals court ruled that the trial court erred in or- charge to avoid trial for felony murder. In light 208 October 2005 Lesbian/Gay Law Notes of her prior criminal record, which was exten- named defendants enjoyed qualified immunity, thirteen-year-old boy. State v. Bonds, 2005 WL sive, she was sentenced to the maximum term of in part because Samuels was barred from suit 2333572 (Sept. 22, 2005). Bonds was tried 20 years. Her appeal went mainly to the length by a federal statute which forbids inmates from twice, the first time ending in a hung jury. The of the sentence, but the appeals court found that suing unless they have sustained a physical in- main testimony against him came from the vic- the trial judge had acted properly within the jury, and partly for the pragmatic reason that tim, who did not sustain any significant physi- scope of discretion in enhancing her sentence most of the relief Samuels seeks is injunctive in cal injury or HIV infection as a result of the en- in light of her criminal record, even though all nature against the officials at Wadeand he is no counter. The court rejected the defendant’s her prior offenses were minor compared to the longer housed there. The basis for Samuels’ suit argument that because he did not actually in- murder of her boyfriend. was his observation that officers would remove fect the victim, his 25–year rape sentence Federal — Iowa — A federal magistrate rec- shackles from inmates when they came in from should not be enhanced by six years specifi- ommended affirming a decision by the Social their exercise period and place them on the next cally due to his HIV status. A.S.L. Security Administration to deny disability inmates to go out, without cleaning them in be- benefits to a person with AIDS, finding that the tween. Samuels became concerned because AIDS Policy Notes ALJ’s decision that the plaintiff had sufficient one of the inmates in question was “a known residual capacity to be employable despite his homosexual which, according to Plaintiff, put Maine — The state of Maine has stopped ac- AIDS diagnosis was not in error. O’Brien v. him at a high risk of having HIV infection.” The cepting federal AIDS education funds because Barnhart, 2005 WL 2177185 (N.D. Iowa, Sept. warden’s response to Samuels’ complaint was of the strings attached, in particular that the 6, 2005). As is frequently the case in such liti- that there was no evidence that HIV is spread funds must be use only for an abstinence-based gation, the magistrate’s report goes into excru- through such a practice as using unsanitized sex education program. Maine is the third state ciating detail summarizing all the record evi- leg shackles. to opt out of the federal program, after Califor- dence in the case, but it all boiled down to the New York — The Appellate Division, 2nd nia and Pennsylvania, because the state’s pub- magistrate’s conclusion that O’Brien was say- Department, ruled in Scardace v. Mid Island lic health officials believe that the abstinence- ing one thing to his doctors i.e., that he was do- Hospital, Inc., 800 N.Y.S.2d 42 (2005), that a only approach is a waste of time without ad- ing fine and another thing in court i.e., that he person who was perceived as being HIV+ dressing safer sex practices as part of the same was too disabled to work. Since the medical could bring a discrimination claim concerning program, but taking federal money would pre- records evidence appeared to contradict the his discharge from employment, but that be- clude doing that. Stated Dr. Dora Anne Mills, hearing evidence, Magistrate Zoss found no er- cause the employer had convincingly shown the state’s public-health director, “This money ror by the A.L.J. in resolving the dispute against that it “was in dire financial straits, requiring is more harmful that it is good. You can’t talk O’Brien, even though it is conceded that the layoffs of several people, not only Scar- about comprehensive reproductive informa- O’Brien has AIDS, according to the opinion. dace,” it was entitled to summary judgment on tion.” Portland Press Herald, Sept. 20. A.S.L. Federal — Louisiana — A federal magis- his discrimination claim on the ground that trate recommended that summary judgment be there was a legitimate nondiscriminatory rea- International AIDS Notes granted against a prison inmate who com- son for his discharge. Scardace had submitted a plained that he was exposed to potential infec- newspaper advertisement for his position in U.K. — The student government at Birming- tion with HIV because ankle shackles were not support of his claim that his job had not been ham University has banned the National Blood being sanitized between use. In Samuels v. Mi- eliminated, but the court noted that the adver- Service from participating in a fair for entering chael, 2005 WL 2304458 (W.D. La., Sept. 20, tisement appeared four years after his dis- freshmen to protest against the anti-gay policy 2005), Magistrate Hornby found that although charge, was undated and “uncertified.” The of the Blood Service, which presumes that gay David Wade Correctional Center, where Sam- court reversed a ruling by the Supreme Court in men are not eligible to donate blood due to fear uels was formerly housed, was routinely violat- Suffolk County which had rejected the employ- of HIV.The National Blood Service denied the ing the provisions of a state regulation requiring er’s summary judgment motion. charge of “homophobia,” claiming that “re- that shackles be sanitized between uses, this Tennessee — The Court of Criminal Appeals search showed there to be a higher risk of the did not create the basis for a federal due pro- affirmed a 31 year prison sentence for Hezzie HIV virus in gay men,” and that this is not a cess claim, at least in part because all the Bonds, an HIV+ man convicted of raping a “prejudice issue.” Birmingham Post, Sept. 8. A.S.L. PUBLICATIONS NOTED & ANNOUNCEMENTS

Movement Job Positions 33137–3227. The applications can also be Botein, Michael, FCC’s Crackdown on emailed to [email protected]. Broadcast Indecency, NY Law Journal, The ACLU of Florida is accepting applications 9/13/2005, p. 4. for the John C. Graves Fellowship in Gay, Les- LESBIAN & GAY & RELATED LEGAL ISSUES: Calvert, Clay, Freedom of Thought, Offensive bian, Bisexual and Transgender Civil Liberties. Fantasies and the Fundamental Human Right The fellow will work for one year at ACLU of Adams, David M., Punishing Hate and Achiev- to Hold Deviant Ideas: Why the Seventh Circuit Florida offices in Miami on LGBT issues. This ing Equality, 24 Crim. Justice Ethics 19 (Win- Got It Wrong in Doe v. City of Lafayette, Indi- is primarily a research and public policy posi- ter/Spring 2005). ana, 3 Pierce L. Rev. 125 (May 2005). tion, but if the fellow is an attorney, there will Baker, Joshua K., Status, Substance, and Case Comment, Discrimination: Transsexual also be participation in litigation. Salary and Structure: An Interpretive Frameworkfor Under- Persons: Pension Entitlement, 2004 Pub. L., benefits commensurate with experience. Ap- standing the State Marriage Amendments,17 SUM, 423–424. plicants should send a current resume, refer- Regent U. L. Rev. 221 (2004–2005). Cassidy, Michael B., ToSurf and Protect: The ences and a writing sample to: John C. Graves Beever, Jessica R., Straight But Not Narrow: Children’s Internet Protection Act Polices Mate- Fellowship, ACLU Foundation of Florida, Inc., Implications of the Federal Same-Sex Marriage rial Harmful to Minors and a Whole Lot More, 4500 Biscayne Blvd., Suite 340, Miami FL Amendment, 73 UMKC L. Rev. 841 (Spring 11 Mich. Telecommunications & Tech. L. Rev. 2005). 437 (Spring 2005). Lesbian/Gay Law Notes October 2005 209 Coleman, Cassie, Love or Confusion? Com- Partnerships What Are the Differences and Do tection, 11 Cardozo Women’s L. J. 283 (Winter mon Law Marriage, Homosexuality and the They Matter?, 19 Probate & Property No. 5, 31 2005). Montana Supreme Court In Snetsinger v. Mon- (Sept./Oct. 2005). Mazzone, Jason, Unamendments, 90 Iowa L. tana University System, 66 Mont. L. Rev. 445 Harrison, Jack B., The Future of Same-Sex Rev. 1747 (May 2005) (argues that the process (Summer 2005). Marriage after Lawrence v. Texas and the Elec- of amending the U.S. Constitution rules out cer- Coliver, Sandra, Holding Human Rights Vio- tion of 2004, 30 U. Dayton L. Rev. 313 (Spring tain kinds of amendments that would be incon- lators Accountable by Using International Law 2005). sistent with the current constitutional scheme, in U.S. Courts: Advocacy Efforts and Comple- Herold, Jennifer A., A Breach of VowsBut Not including the proposed Federal Marriage mentary Strategies, 19 Emory Int’l L. Rev. 169 Criminal: Does Lawrence v. Texas Invalidate Amendment). (Spring 2005) (essay). Utah’s Statute Criminalizing Adultery?,7J.L. McCarthy, Vincent P., The Necessity of a Fed- Collins, Michael J., Fair v. Rumsfeld, 390 & Fam. Stud. 253 (2005). eral Marriage Amendment, 17 Regent U. L. F.3d219 (3D CIR. 2004), 13 Am. U. J. Gender Hodges, Amy Zimmerman, Identifying the Rev. 211 (2004–2005). Soc. Pol’y & L. 717 (2005) (current event item). Linguistic Boundaries of Sex: Court Language Morgan, Denise C., and Rebecca E. Zietlow, Cooper, Benjamin J., Naked Before the Law: Choice in Decisions Regarding the Availability The New Parity Debate: Congress and the Reality Porn and the Capacity to Contract,11 of Sex and Procreation, 11 Cardozo Women’s Rights of Belonging, 73 U. Cin. L. Rev. 1347 Cardozo Women’s L.J. 353 (2005). L.J. 413 (Winter 2005). (Summer 2005). Cossman, Brenda, Contesting Conserva- Hovell, Devika, and George Williams, A Tale Moss, Susan M., McGriff v. McGriff: Consid- tisms, FamilyFeudsand the Privatization of De- of Two Systems: The Use of International Law in eration of a Parent’s Sexual Orientation in pendency, 13 Am. U. J. Gender Soc. Pol’y & L. Constitutional Interpretation in Australia and Child Custody Disputes, 41 Idaho L. Rev. 593 415 (2005). South Africa, 29 Melbourne U. L. Rev. 95 (April (2005). Davis, Martin, and David Hughes, What’s 2005). Nash, Jennifer C., From Lavender to Purple: Sex Got to Do With It? The Ever Contentious Is- Johnston, Anne S., Playing Hot Potato With Privacy, Black Women,and FeministLegal The- sue of Succession to Tenancies, Conveyancer & COPA: The Supreme Court Defers Deciding ory, 11 Cardozo Women’s L.J. 303 (Winter Property Lawyer, July-Aug. 2005, 306. (British Whether the Child Online Protection Act is Con- 2005). journal). stitutional Once Again, 24 St. Louis U. Pub. L. Niemczyk, Brian N., Baker v. Nelson Revis- Duncan, William C., DOMA and Marriage, Rev. 477 (2005). ited: Is Same-Sex Marriage Coming to Minne- 17 Regent U. L. Rev. 203 (2004–2005). Kannady, Christopher L., The State, Chero- sota?, 28 Hamline L. Rev. 425 (Spring 2005). Duncan, William C., The Case for a Federal kee Nation, and Same-Sex Unions: In re: Mar- Perry, Sean, When Marriage Is Not Enough: Marriage Amendment to the Constitution, Civil riage License of McKinley & Reynolds,29Am. Utah’s Marriage Amendment in Context,7J.L. Rights, Religion & Same-Sex Marriage: Where Indian L. Rev. 363 (2004–2005). & Fam. Stud. 275 (2005). Are We Going?, 30 Thurgood Marshall L. Rev. Kleinschmidt, Heather L., Reconsidering Se- Pierceson, Jason, Courts, Liberalism, and 145 (Fall 2004). vere or Pervasive: Aligning the Standard in Sex- Rights: Gay Law and Politics in the United Endsjo, D.O., Lesbian, Gay, Bisexual, and ual Harassment and Racial Harassment Causes States and Canada (Philadelphia: TempleUni- Transgender Rights and the Religious Relativ- of Action, 80 Indiana L.J. 1119 (Fall 2005). versity Press, 2005) (comparative study of ism of Human Rights, 6 Hum. Rts. Rev. 102 Kohm, Lynne Marie, and Karen M. Groen, treatment of gay rights by constitutional courts (January-March 2005). Cohabitation and the Future of Marriage,17 in the U.S. and Canada). Feindel,Alycia T., Reconciling Sexual Orien- Regent U. L. Rev. 261 (2004–2005). Polk, Lisa M., Montana’s Marriage Amend- tation: Creating a Definition of Genocide That Kosse, Susan Hanley, and Robert H. Wright, ment: Unconstitutionally Denying a Funda- Includes Sexual Orientation, 13 Mich. St. J. How Best to Confront the Bully: Should Title IX mental Right, 66 Mont. L. Rev. 405 (Summer Int’l L. 197 (2005). or Anti-Bullying Statutes Be the Answer?,12 2005). Gallagher, Maggie, Keynote Address: The Duke J. Gender L. & Pol’y 53 (Spring 2005). Pollert, Anna, The Unorganised Worker: The Case for the Futureof Marriage, 17 Regent U. L. Kratzke, William P., The Defense of Marriage Decline in Collectivism and New Hurdles to In- Rev. 185 (2004–2005). Act (DOMA) Is Bad Income Tax Policy,35U. dividual Employment Rights, 34 Indus. L.J. Garvey, Stephen P., Passion’s Puzzle, 90 Iowa Mem. L. Rev. 399 (Spring 2005). 217 (Sept. 2005). L. Rev. 1677 (May 2005) (on the “heat of pas- Lee, Rebecca K., Pink, White, and Blue: Ponte, Lucille M., and Jennifer L. Gillan, sion” defense in criminal law, frequently in- Class Assumptions in the Judicial Interpreta- From Our Family to Yours: Rethinking the voked by murderers of gay men, lesbians and tions of Title VII Hostile Environment Sex Ha- “Beneficial Family” and Marriage-Centric transsexuals). rarssment, 70 Brook. L. Rev. 678 (Spring Corporate Benefit Programs, 14 Colum. J. Gen- Glensy, Rex D., Which Countries Count?: 2005). der & L. 1 (2005). Lawrence v. Texas and the Selection of Foreign Lester, Toni, Queering the Office: Can Sexual Randazzo, Ralph, Elder Law and Estate Persuasive Authority, 45 Va.J. Int’l L. 357 (Win- Orientation Employment Discrimination Laws Planning for Gay and Lesbian Individuals and ter 2005). TransformWorkPlace Norms for LGBT Employ- Couples, 6 Marquette Elder’s Advisor 1 (Fall Gorman, Elizabeth H., Gender Stereotypes, ees?, 73 UMKC L. Rev. 643 (Spring 2005). 2004) (available on Westlaw) (practical advice Same-Gender Preference, and Organizational Lindley, Kathryn V., Will the Tower Topple? from a prominent member of LeGaL). Variation in the Hiring of Women: Evidence The Future of Morality as a Legitimate State In- Reid, Emily, and Eugenia Caracciolo Di From Law Firms, 70 Amer. Sociological Rev. terest Argument in Homosexual Legal Issues,53 Torella, The Changing Shape of the “European 702 (Aug. 2005). Drake L. Rev. 1063 (Summer 2005). Family” and FundamentalRights, European L. Gould, Jon B., The Real Triumph of Hate Lindsay, David, An Exploration of the Con- 2002, 27(1), 80–90. Speech Regulation, 8 Green Bag 2d 367 (Sum- ceptual Basis of Privacy and the Implications for Rosenfeld, Michael J., and Byung-Soo Kim, mer 2005). the Future of Australian Privacy Law,29Mel- The Independence of Young Adults and the Rise Hansen, Kirsti, Marriage Matters,7J.L.& bourne U. L. Rev. 131 (April 2005). of Interracial and Same-Sex Unions, 70 Amer. Fam. Stud. 303 (2005). Lloyd, Erin, Intersex Education, Advocacy & Sociological Rev. 541 (Aug. 2005). Harris, Leslie J., Same-Sex Unions Around the Law: The Struggle for Recognition and Pro- Secunda, Paul M., At the Crossroads of Title the World: Marriage, Civil Unions, Registered IX and a New “Idea”: Why Bullying Need Not 210 October 2005 Lesbian/Gay Law Notes Be “A Normal Part of Growing Up” for Special Wachs, Heidi, Permissive Pornography: The Academic Medical Centers, 53 Buff. L. Rev. 663 Education Children, 12 Duke J. Gender L. & Selective Censorship of the Internet Under CIPA, (Spring 2005). Pol’y 1 (Spring 2005). 11 Cardozo Women’s L.J. 441 (Winter 2005). Smith, Stephen W., Evidence for the Practical Seidman, Louis Michael, Torture’s Truth,72 Wardle, Lynn D., Children and the Future of Slippery Slope in the Debate on Physician- U. Chi. L. Rev. 881 (Summer 2005). Marriage, 17 Regent U. L. Rev. 279 Assisted Suicide, 13 Med. L. Rev. 17 (Spring Serra, Rudolph A., Civil Rights: “Rights (2004–2005) (Question: How many variations 2005). Without Remedies Wrongs Un-Righted”,50 on the same article can one scholar write in a Woodard,Rebecca, Is YourMedical Informa- Wayne L. Rev. 933 (Fall 2004). lifetime. Going for the world record.... ) tion Safe? A Comparison of Comprehensive and Shaman, Jeffrey M., On the 100th Anniver- Whitty, Tyler S., Eliminating the Exception? Sectoral Privacy and Security Laws, 15 Indiana sary of Lochner v. New York, 72 Tenn. L. Rev. Lawrence v. Texas and the Arguments for Ex- Int’l & Comp. L. Rev. 147 (2004). 455 (Winter 2005) (emphasizes the revival of tending the right to Marry to Same-Sex Couples, substantive due process with specific reference 93 Ky. L. J. 813 (2004–2005). EDITOR’S NOTES: to Lawrence v. Texas and the right of privacy). Williams, Bethany, North and South: The Sheridan, Paul R., Hate Crime Law in West Disparate Legal Approaches to Homosexual Ac- Correction — Our report about the three Cali- Virginia, 107 W.Va. L. Rev. 699 (Spring 2005). tivity in the United States and Nicaragua,15 fornia Supreme Court decisions issued on Small, Joan, and Evadne Grant, Dignity, Dis- Indiana Int’l & Comp. L. Rev. 215 (2004). August 22 concerning parental rights of lesbian crimination, and Context: New Directions in Williams, Gwyneth I., Looking at Joint Cus- co-parents misinterpreted the extensive ami- South African and Canadian Human Rights tody Through the Language and Attitudes of At- cus curiae briefing list included with one of the Law, 6 Hum. Rts. Rev. 25 (January-March torneys, 26 Just. Sys. J. 1 (2005). decisions, K.M. v. E.G., 117 P.3d673, 33 Cal. 2005). Specially Noted: Rptr. 3d 61 (Aug. 22, 2005). We based our re- Spann, Girardeau A., Constitutionalization, port on the version of the opinion posted to the 49 St. Louis U. L.J. 709 (Spring 2005) (discus- Symposium: Moral Realism and the Renais- court’s website on the date it was issued. Based sion of the perils of taking controversial issues sance of Traditional Marriage, 17 Regent U. L. on the amicus list that appeared there, we re- out of the political process through constitu- Rev. (2004–2005). The right wing speaks. ••• ported that there was a split among gay-related tionalizing them). New ALR Annotation of Note: Imputation of groups filing amicus briefs on both sides of the Strahilevitz, Lior Jacob, A Social Networks Homosexuality as Defamation, 7 A.L.R.6th 135 case. Wehave since been advised that this con- Theory of Privacy, 72 U. Chi. L. Rev. 919 (Sum- (2005). clusion was erroneous, and that indeed all the mer 2005). gay-related amicus groups in that case filed on Theiss, Paul F., Constitutional Law The Elev- HIV/AIDS & RELATED LEGAL ISSUES: behalf of K.M. and the children. The correct at- enth Circuit Fumbles the Supreme Court’s Rec- tributions of amicus parties can be found in the ognition of a Due Process Right to Sexual Inti- Ball, Carlos A., Looking for Theory in All the version of the opinion available at the citations macy, 58 SMU L. Rev. 481 (Spring 2005). Right Places: Feminist and Communitarian indicated here. Udombana, Nsongurua J., Interpreting Elements of Disability Discrimination Law,66 All points of view expressed in Lesbian/Gay Rights Globally: Courts and Constitutional Ohio St. L.J. 105 (2005). Law Notes are those of identified writers, and Rights in Emerging Democracies, 5 African Meel, B.L., HIV/AIDS Post-Exposure Pro- are not official positions of the Lesbian & Gay Hum. Rts. L.J. 47 (2005). phylaxis (PEP) for Victims of Sexual Assault in Law Association of Greater New Yorkor the Le- Vargas, Jorge A., Privacy Rights Under Mexi- South Africa, 45 Medicine, Science & L. 219 GaL Foundation,Inc. All comments in Publica- can Law: Emergence and Legal Configuration (July 2005). tions Noted are attributable to the Editor.Corre- of a Panoply of New Rights, 27 Houston J. Int’l Shulman, Sheila, and Andrea Kuettel, Drug spondence pertinent to issues covered in L. 73 (Fall 2004). Development and the Public Health Mission: Lesbian/Gay Law Notes is welcome and will be Collaborative Challenges at the FDA, NIH, and published subject to editing. Please address correspondence to the Editor or send via e- mail.