LESBIAN/GAY LAW NOTES September 2011 169

DADT MILITARY POLICY TO END SEPTEMBER 20, 2011

On July 22, President Barack Obama an- first decade, as discharges rose through the policy, and a district court concluded on nounced that Secretary of Defense Leon 1990s. However, with the advent of wars in remand, 739 F.Supp.2d 1308 (W.D.Wash. Panetta and Admiral Michael Mullen, Afghanistan and Iraq early in this century, 2010), that the government was unable to chairman of the Joint Chiefs of Staff, had the number of discharges declined as mili- meet that burden in an “as applied” chal- joined him in signing a certification to the tary commanders were less eager to remove lenge. designated chairs and ranking members of satisfactorily-performing personnel from In another case pending in a district the armed services committees in Congress the theater of war. Legal challenges to the court in the 9th Circuit, brought by the that the Don’t Ask, Don’t Tell Repeal Act policy were ultimately unsuccessful during Log Cabin Republicans, a gay political of 2010 could be implemented. Delivery the 1990s, as the looming Supreme Court group suing as representative of two of of the certification to Congress that after- precedent of Bowers v. Hardwick (1986) its members, a trial judge ruled that the noon set the 60-day period in motion for made it difficult for courts to accept the DADT policy was not sustainable under final repeal of the policy, which had been argument that individuals who might en- Due Process heightened scrutiny, and is- enacted by Congress in 1993 as a “compro- gage in conduct that the government could sued a worldwide injunction against its mise” between President William J. Clin- – and did – designate as criminal, nonethe- enforcement in October 2010, which was ton’s campaign pledge that the existing ban less had a constitutional right to remain in stayed by the 9th Circuit pending the gov- on military service by gay people would be the service. ernment’s appeal. 204. Log Cabin Republi- ended, and the position of military leaders A turning point came after the Supreme cans v U.S., 716 F.Supp.2d 884 (C.D. Cal. who sought to preserve the existing policy, Court’s 2003 ruling in Lawrence v. Texas 2010). Two months after the stay was is- arguing that allowing gay people to service that criminal sodomy laws violated the Due sued, Congress passed the DADT Repeal would seriously undermine good order, Process rights of gay people, which led the Act, and the government pushed the 9th morale, unit cohesion, and military recruit- 9th and 1st Circuits to rule in challenges to Circuit to delay briefing and argument. ment. The “compromise” was, in effect, that DADT that heightened scrutiny should be The 9th Circuit moved ahead with a applicants for enlistment would no longer given to the government’s justification for briefing schedule in light of the failure of be asked about their sexual orientation and the policy in the context of a Due Process the Repeal Act to provide any deadline for that gay people could serve as long as they challenge. (Both circuit courts agreed with repeal, and the government responded by did not engage in any “homosexual con- the government that heightened scrutiny shifting its argument on appeal, contend- duct,” which was defined to include saying would not apply to an Equal Protection ing that the question whether the policy or doing anything that would communicate challenge.) In a test case in the 1st Cir- as originally adopted was unconstitutional to others that they might have a “propen- cuit, Cook v. Gates, 528 F3d 42 (2008), the was mooted by the Repeal Act, leaving be- sity” to engage in homosexual conduct. court found that the legislative record com- fore the court only the question whether Enactment of the policy also left in place piled in 1993, together with the deference the Repeal Act itself, by keeping the policy Article 125 of the Uniform Code of Mili- that courts ordinarily give to the political in place through a transitional period prior tary Justice, which made anal or oral sex branches and military leaders in matters of to repeal, was itself unconstitutional. As to a military crime. An individual who said military personnel policy, were sufficient to that, the government argued that its desire they were gay was presumed to have a pro- sustain the statute against a facial challenge. for an orderly transition accompanied by pensity to engage in homosexual conduct, But in Witt v. Department of the Air Force, regulatory changes and instruction to ser- and thus was to be discharged under the 527 F.3d 806 (2008), the 9th Circuit ruled vice personnel, provided sufficient justifica- policy for having “told.” that heightened scrutiny held that dis- tion to keep the policy in place during the Although the DADT policy was expect- charging Major Witt, a highly-decorated transitional period. Early in July, the 9th ed to reduce the number of service members Air Force nurse, would be unconstitutional Circuit panel lifted the stay, but partially who were discharged for “homosexuality,” unless the government could show that do- reinstated it in response to an “Emergency it actually had the opposite effect during its ing so served an important governmental Motion” by the government, which urged

LESBIAN/GAY LAW NOTES September 2011

Editor: Prof. Arthur S. Leonard, New York Law School, 185 W. Broadway, NY, NY 10013, 212-431-2156; e-mail: [email protected] or arthur.leonard@ nyls.edu Contributing Writers: Alan J. Jacobs, Esq., New York City; Bryan Johnson, Esq., New York City; Steven Kolodny, Esq., New York City; Daniel Redman, Esq., San Francisco; Brad Snyder, Esq., New York City; John Teufel, Brooklyn Law ’13; Eric Wursthorn, Esq., New York City; Kelly Garner, New York Law School ’12; Stephen E. Woods, Esq., New York City. Circulation: Administrator, LEGAL, 799 Broadway, Rm. 340, NYC 10003. 212-353-9118; e-mail: [email protected]. Inquire for rates. LeGaL Homepage: http://www.le-gal.org Law Notes on Internet: http://www.nyls.edu/jac ©2011 by the LeGaL Foundation of the LGBT Law Association of Greater New York ISSN 8755-9021 170 September 2011 LESBIAN/GAY LAW NOTES patience as certification was said to be “im- on personnel who engaged in conduct de- kind towards the payment of hormone minent.” Shortly thereafter, the certifica- scribed in that provision, but it was possible therapy or sexual reassignment surgery tion to Congress took place, initiating the that the repeal of DADT might lead the for inmates. The inmate plaintiffs, Andrea final 60 day period leading to repeal. military appeals courts to reassess their po- Fields, Matthew Davison (also known as As of the end of August, when this issue sition. Jessica Davison) and Vankemah Moaten, of Law Notes went to press, oral argument The final disappearance of “Don’t Ask, are male-to-female transsexuals who, prior was scheduled to take place early in Sep- Don’t Tell” meant that many law schools to the enactment of Act 105, received hor- tember, just weeks before repeal would go that had barred military recruiters in the monal therapy as treatment for GID. As into effect. Log Cabin Republicans argued, past because of that policy were rethink- inmates are not allowed to seek medical contrary to the government, that the case ing their positions, on the ground that their treatment of any kind outside of the prison, should not be dismissed as moot, because students seeking potential legal jobs with even if they can afford it, Act 105 removed the question whether the district court’s the armed forces could not longer be dis- the only means by which the plaintiffs ruling on the merits was correct remained qualified based on sexual orientation. But could obtain hormone therapy. Initially, significant for damage claims relating to the Society of American Law Teachers sent the three plaintiffs brought the suit as a injuries suffered by lesbian and gay service a letter to its members stressing that the class action on behalf of all DOC inmates members due to the application of DADT lack of a non-discrimination provision in requiring treatment for GID. Although to them over a period of 17 years. There the Repeal Act, together with the continue the district court denied their motion for were other pending legal disputes concern- influence of DOMA constraining benefits class certification, the suit, based on each ing attempts by the Defense Department that can be provided to same-sex military plaintiff ’s individual claims against the to recapture ROTC scholarship money spouses, meant that the military could still DOC, was allowed to go forward. from individuals who were dismissed under be considered a discriminatory employer. Judge Gottschall devotes the first por- DADT, as well as attempts to recapture the A.S.L. tion of her opinion to summarizing the value of military service academy tuition evidence presented to the district court from officers who were dismissed under the LESBIAN/GAY LEGAL concerning both GID and its treatment. policy. If the policy was unconstitutional, Plaintiffs presented expert witnesses who those claims would be strengthened. NEWS AND NOTES specialize in the treatment of individuals Servicemembers Legal Defense Net- diagnosed with GID and who testified to work, the advocacy organization formed in 7th Circuit Invalidates Wisconsin the psychological suffering experienced by 1993 to lobby for repeal of the policy, issued Inmate Sex Change Prevention people with GID, including severe depres- a guide to assist LGBT service members in Act sion which can lead to suicidal thoughts. light of the impending repeal. Titled Free- The plaintiffs’ experts, one of whom spe- dom to Serve: The Definitive Guide to LGBT The U.S. Court of Appeals for the Sev- cializes in the treatment of transsexuals Military Service, it was downloadable from enth Circuit recently affirmed the Eastern in correctional facilities, also testified that the organization’s website: www.sldn.org. District of Wisconsin’s finding that a state hormone therapy is a standard form of care As the Defense Department announced statute barring the Wisconsin Department for GID when psychotherapy and living as that there was no intention to amend its of Corrections (“DOC”) from paying for the opposite gender alone are inadequate to non-discrimination policy to add “sexual hormone therapy or sexual reassignment alleviate the symptoms, and in some cases orientation,” that due to the Defense of surgery for prisoners diagnosed with Gen- sexual reassignment surgery is the most ap- Marriage Act there would be no recogni- der Identity Disorder (GID) is unconstitu- propriate treatment. Hormone therapy not tion of same-sex spouses of military per- tional both facially and as applied. Fields v. only incites changes in a person’s physical sonnel, and due to the persistence of Article Smith, 2011 WL 3436875 (Aug. 5, 2011). appearance, but also eases psychological 125 as a criminal prohibition of sodomy in In the Seventh Circuit’s opinion, written by distress. If a patient stops taking hormone the military, SLDN decided that there was District Judge Gottschall (N.D.Ill.) who therapy, psychological symptoms reappear, work remaining to be done, so the orga- was sitting by designation, the court held often in a more severe form, and the person nization would continue in business as an that the district court did not err in invali- may experience physical symptoms such as advocate for equal rights and fair treatment dating the Inmate Sex Change Prevention high blood pressure, muscle wasting, and for LGBT service members. In the wake Act (Act 105) on the grounds that it vio- neurological complications. Each of the of Lawrence v. Texas, the military appeals lates the Eighth Amendment’s prohibition three plaintiffs experienced some of these courts had adopted an interpretation of Ar- against cruel and unusual punishment and complications when the DOC began to re- ticle 125 that would continue to apply it in the Equal Protection Clause of the Four- duce their hormone levels in 2006. any situation where the court determined teenth Amendment. However, the Sev- To determine if Act 105 rises to the that the special considerations of military enth Circuit declined to address the Equal level of cruel and unusual punishment, the service warranted an exception to the Due Protections issue, finding that as Act 105 is Seventh Circuit looked to the standard it Process protection announced by the Su- facially unconstitutional under the Eighth applied in Greeno v. Daley, 414 F.3d 645 preme Court in that case. Prosecutions Amendment, is was unnecessary to find it (2005)) In Greeno, the Seventh Circuit prior to implementation of the DADT unconstitutional on further grounds. stated that “prison officials violate the Repeal Act usually found that it remained Enacted in 2005, Act 105 prohibits the Eighth Amendment’s proscription against appropriate to impose criminal penalties DOC from providing state funding of any cruel and unusual punishment when they LESBIAN/GAY LAW NOTES September 2011 171 display ‘deliberate indifference to serious ternative treatments for transsexualism as adapted the common law doctrine of “in medical needs of prisoners’” (quoting Es- effective as hormone therapy. loco parentis,” which has been used to telle v Gamble, 429 U.S. 97 (1976)). Here, The DOC also asserted that Act 105 consider parental rights of stepparents and the Seventh Circuit stresses the serious serves the legitimate state purpose of en- grandparents, to provide a basis for allow- psychological effects of GID when it is suring prison security. The defendants ing same-sex co-parents to seek to preserve left untreated, or when treatment is with- argued that the physical changes that their relationships with children after the drawn, and characterizes the refusal by the hormone therapy causes in male inmates, end of a relationship with a biological or DOC to treat patients with the condition giving them a more feminine appearance, adoptive parent. Ruling in Latham v. as “amount[ing] to torture.” District Judge would cause an increase in sexual assaults Schwerdtfeger, 282 Neb. 121, 2011 Westlaw Gottschall states that the DOC would against male-to-female transsexuals by 3763776 (August 26, 2011), six members of never consider denying the most effective other prisoners. The court rejects this ar- the court joined in Justice Lindsey Miller- treatment to a person with another serious gument, finding that the DOC failed to Lerman’s opinion. One member of the medical condition, and patients with GID establish any connection between hormone seven-member court did not participate in should be treated no differently. therapy and a rise in prison violence against the case. In defending the constitutionality of Act prisoners with GID. In fact, the DOC’s According to the court’s opinion, Teri 105, the DOC did not contend that GID is expert witness on prison security, Eugene A. Latham and Susan Rae Schwerdtfeger not a serious medical condition, but rather Atherton, who worked at the Colorado met in college and began living together in asserted that the act does not prohibit the Department of Corrections, stated that 1985. After several years of living together, provision of all treatments for GID, only hormone therapy “had been implemented they began discussing having a child and, hormone therapy and sexual reassignment effectively in Colorado” and “that it would ruling out adoption, decided that Susan surgery. Relying on two Seventh Circuit be ‘an incredible stretch’ to conclude that would be the birth mother. After several decisions, the DOC argued that as long as banning the use of hormones could prevent attempts at donor insemination failed, they other medical treatment options are avail- sexual assaults.” successfully resorted to in vitro fertiliza- able to prisoners, the prohibition of certain Finally, the DOC argued that, even if tion, and their son, P.S., was born in 2001. options does not rise to the level of cruel Act 105 is unconstitutional, the district They shared parenting duties and expenses, and unusual punishment. Both cases cited court erred in invalidating it on its face. and P.S. referred to Teri as “Mom.” Un- by the DOC address prison officials’ refusal By holding that no enforcement of the act fortunately, the relationship between the to provide prisoners treatment for GID. In can be constitutional, the DOC argued, the women broke down, and Teri moved out of Meriwether v. Faulkner, the court held that district court violated the Prison Litigation the family home in 2006. She continued to prison officials could not deny all treatment Reform Act (PLRA) which requires that maintain a relationship with P.S. through to a transsexual prisoner, but stated in dicta “prospective relief in any civil action with visiting and telephoning, but Susan be- that that did not mean that the prisoner respect to prison conditions shall extend no gan cutting down the frequency of contact had “a right to any particular type of treat- further than necessary to correct the vio- and by 2009 it had become slight. After ment,” 821 F.2d 408 (1987). The DOC also lation of the Federal right of a particular they terminated their joint bank account relied on Maggeert v. Hanks, wherein the plaintiff.” The DOC contended that the in 2007, Teri ceased contributing financial court stated, “again in dicta, that the Eighth facial invalidation of Act 105 is too broad support. Amendment does not require the provision to be within the scope of the PLRA. The Teri filed a lawsuit in Douglas County of ‘esoteric’ treatments like hormone thera- district court rejected the argument that District Court in 2009, seeking an order of py and sexual reassignment surgery which there are cases in which Act 105 can be ap- custody and visitation. District Judge Mar- are ‘protracted and expensive’ and not gen- plied constitutionally, holding that the de- lon A. Polk concluded that since Teri was erally available to those who are not afflu- fendants provided no evidence to support neither the biological nor adoptive parent ent.” 131 F.3d 670 (1997). While both of this assertion. Although the DOC admit- of P.S., she lacked standing to seek such an these decisions rely on the assumption that ted to the district judge at a status confer- order, and dismissed the case, finding that certain treatments for GID are expensive, ence that the court’s order was as narrow as Nebraska’s “in loco parentis” doctrine would and therefore prison officials should not required by the PLRA, the Seventh Circuit not apply where the plaintiff had no legal be required to provide them if other more addressed the assertion, finding that the relationship with the child’s parent. At the cost effective treatments are available, here, district court did not err in invalidating same time, Judge Polk also ruled that even the district court determined that in 2004 the entire act as that was the most narrow if Teri had standing, the facts would not the cost to the DOC of providing hormone means of correcting the constitutional vio- support her claim to parental rights, and therapy to two inmates was $2,300, while lation. Kelly Garner granted Susan’s motion for summary judg- the cost of antipsychotic medication com- ment. Nebraska has no intermediate ap- monly prescribed to inmates was $2,500 Nebraska Supreme Court pellate court, so Teri’s appeal went directly per patient. In oral arguments before the Embraces “In Loco Parentis” to the state supreme court. Seventh Circuit, the DOC disclaimed the Doctrine in Same-Sex Couple Justice Miller-Lerman pointed out that argument that cost was a legitimate pur- Custody/Visitation Dispute Nebraska courts have recognized the doc- pose behind Act 105. The DOC also failed trine of “in loco parentis” in cases involving to produce any evidence that there are al- The Nebraska Supreme Court has joined stepparents seeking to preserve a relation- the growing list of state courts that have ship with their former spouse’s children, 172 September 2011 LESBIAN/GAY LAW NOTES and have also used it in one case to grant and autonomy, that presumption must give fully litigate the issues. Latham has made parental rights to a grandparent who had way where the child has established strong a meritorious claim of standing to seek en- formed a parental bond with a child. The psychological bonds with a person who, forcement of her claimed right to custody court explained that “a person standing in although not a biological parent, has lived and visitation of P.S.” loco parentis to a child is one who has put with the child and provided care, nurture, Tyler C. Block and Elizabeth Stuht himself or herself in the situation of a law- and affection, assuming in the child’s eye a Borchers of the firm of Marks, Clare & ful parent by assuming the obligations in- stature like that of a parent. Where such a Richards represent Teri Latham. Angela cident to the parental relationship, without relationship is shown, our courts recognize Dunne Tiritilli and Susan A. Koenig of the going through the formalities necessary to that the child’s best interest requires that partnership of Koenig & Tiritilli represent a legal adoption, and the rights, duties, and the third party be granted standing so as Susan Rae Schwerdtfeger. Kelle Westland liabilities of such person are the same as to have the opportunity to litigate fully the of the law firm of Raynor, Rensch & Pfei- those of the lawful parent.” issue of whether that relationship should ffer submitted an amicus brief on behalf of The question the court confronted in be maintained even over a natural parent’s the National Center for Lesbian Rights, this case was whether to extend that doc- objection.” supporting Teri Latham’s argument for ap- trine to a dispute between same-sex co- The court said that the doctrine “must plication of the in loco parentis doctrine to parents, where there was no legal relation- be applied flexibly and is dependent upon cases of this type. ship between the parents. As Nebraska the particular facts of each case.” In this In an interview with the Associated Press forbids same-sex marriage and does not case, the court said, the district judge clear- published shortly after the opinion was re- make available civil unions or domestic ly erred in concluding as a matter of law leased, Tyler Block hailed the ruling, saying partnership for same-sex couples, Teri and that the doctrine did not apply, since there that the court “got it exactly right.” “They Susan had no legal relationship recognized was uncontradicted evidence that Teri had applied Nebraska law and helped give clari- by the state. played a full parental role during the early fication on how it applies in these particular To explore this question, the court con- years of P.S.’s life, and that her factual alle- situations.” Angela Tiritilli agreed that the ducted an extensive review of decisions gations would support her claim to stand- ruling would help clarify parental rights in from other states as well as scholarly ar- ing under the doctrine of “in loco parentis.” the state, while commenting that her client ticles, and concluded that the trend of legal Of course, that doesn’t end the case, since was disappointed because this will prob- authority was in the direction of applying the ultimate issue for the court is whether ably mean several more years of court pro- the “in loco parentis” doctrine to same-sex it is in the best interest of P.S. to order that ceedings in the case. But, she said, “What couples who had been raising children to- Teri be allowed to re-establish and main- we’re seeing here is a good trend; the court gether. The court cited and quoted exten- tain her parental relationship with the child is not simply dismissing same-sex parental sively from appellate rulings in Pennsylva- through shared custody or visitation. As to rights.” A.S.L. nia, Washington, Wisconsin, and Arkansas, this, Teri and Susan had asserted different all of which concluded that it was appropri- versions of the facts about Teri’s relation- 8th Circuit Takes a Narrow View ate to recognize the standing of a same-sex ship with the child after she moved out of Actionable Anti-Gay Taunting co-parent to seek custody or visitation af- of the family home. The Supreme Court Under Title IX ter the break-up of a relationship with the decided that “there are genuine issues of child’s biological or adoptive parent. material fact which preclude entry of sum- A unanimous U.S. Court of Appeals 8th “The courts that have applied the doc- mary judgment,” and that it had been “pre- Circuit panel ruled in Wolfe v. Fayette- trine of in loco parentis in cases such as mature” for the district court to award sum- ville, Arkansas, School District, 2011 West- ours,” wrote Justice Miller-Lerman, “have mary judgment to Susan. law 3444555 (Aug. 9, 2011), that a public looked to the purpose of the doctrine and The trial judge’s error, said the court, was school student seeking to hold the school noted that the focus of an in loco parentis that the court focused on the relationship district liable for sexual harassment under analysis must be on the relationship be- between Teri and Susan — and particularly Title IX, 20 U.S.C. Section 1681, must tween the child and the party seeking in on the breakdown of that relationship — show that the harassment he suffered was loco parentis status,” in order to determine rather than on the relationship between motivated by his sex or his failure to con- whether a parent-child bond had been Teri and P.S. The court sent the case back form to gender stereotypes. Rejecting a formed during the time that the plaintiff to the trial court to sort out the factual al- challenge to the trial judge’s jury instruc- had participated in parenting the child. legations and determine whether Teri’s re- tions, the court affirmed a jury verdict in She quoted from a Pennsylvania ruling lationship with P.S. was sufficient to justify favor of the school district, despite uncon- on the justification for applying the doc- an order in her favor. tradicted evidence that the student was trine: “The in loco parentis basis for stand- “We conclude that Latham has standing subjected so such a continuing barrage of ing recognizes the need to guard the family based on the doctrine of in loco parentis anti-gay epithets and some physical attacks from intrusions by third parties and to pro- and that the district court erred when it that he withdrew from school in the 10th tect the rights of the natural parent must concluded that the doctrine of in loco pa- grade to pursue a General Education Di- be tempered by the paramount need to rentis did not apply to this case,” concluded ploma through home study because he felt protect the child’s best interest. Thus, while the court. “Our opinion does not speak to unsafe at school. it is presumed that a child’s best interest is Latham’s chance of success on the merits, According to the opinion for the court served by maintaining the family’s privacy but it merely affords her the opportunity to by Judge Kermit Bye, William Wolfe was LESBIAN/GAY LAW NOTES September 2011 173

“ridiculed at the hands of his fellow stu- been charged by the trial judge that in order jury would be too easily swayed by the no- dents on numerous occasions” between to find a violation of the statute it had to toriety of the case, and a 12-person jury his sixth grade and tenth grade years in find that the harassment was motivated “by would be less subject to pressure. The court the Fayetteville school district. “Beginning Wolfe’s gender or his failure to conform to of appeals found that there was nothing in sixth grade, Wolfe was harassed several stereotypical male characteristics,” drawing in the law to support the argument that a times per week including pushing, shoving, on precedents from workplace harassment plaintiff has some entitlement to a smaller name-calling, and being falsely labeled as cases under Title VII of the Civil Rights jury. homosexual. The name-calling included Act, concluded that Wolfe had not made Judge Bye does not comment about the gender-based epithets such as ‘faggot,’ out his case and rendered a verdict for the facts beyond reciting them. However, it is ‘queer bait,’ and ‘homo,’ among others. school district. noteworthy that when junior and senior Over the years the harassment escalated. On appeal, Wolfe’s main argument was high school students are angry at a fellow In seventh grade, Wolfe was punched and that the trial judge in the Western District student and want to harass and embarrass had his head slammed into a window while of Arkansas had not correctly instructed him to punish him for bad behavior, they riding the school bus. In ninth grade, his the jury, having rejected Wolfe’s proposed resort to homophobic epithets and taunts. classmates created a Facebook page called jury instruction. Wrote Judge Bye, “Wolfe The worst thing you can call somebody at ‘Every One [sic] That Hates Billy Wolfe.’ suggests it would be sufficient under Title that age is a “faggot.” This remains part of The picture for the Facebook group showed IX to show the harassers used name-calling the public school culture that contributes Wolfe’s face photo-shopped onto a figure and spread rumors in an effort to debase his to teen suicide. Unfortunately, Title IX as in a green fairy costume with the work masculinity and thus contends the district construed by this court does not necessarily ‘HOMOSEXUAL’ written across it. Ad- court erred in instructing the jury it had incentivize schools to take sufficient action ditionally, Wolfe’s classmates graffitied to find gender or the failure to conform to in such situations, because of the focus on highly offensive, homosexual accusations gender stereotypes as the harasser’s motiva- the motivation of the harassers rather than about Wolfe on bathroom walls and in tion to hold FSD liable.” the impact on the victim of the harassment. classroom textbooks. During Wolfe’s last The court of appeals disagreed with Some proposals have been made to amend year with FSD, his tenth grade year, Wolfe Wolf, invoking the Supreme Court’s fa- federal law to place a legal obligation on got in a fight with a classmate, and two days mous same-sex harassment ruling in On- school districts to take appropriate steps to later the classmate jumped out of a car and cale v. Sundowner Offshore Services, Inc., 523 protect students from harassment, regard- punched Wolfe while he was walking home U.S. 75 (1998), where the Court held that less of the issue of motivation. This ruling from school.” same-sex harassment was actionable under could be Exhibit A in favor of the need for Wolfe’s lawsuit claimed that the dis- Title VII if the plaintiff could prove that such legislation. Whatever sins this stu- trict failed to take adequate steps to deal the harassment he suffered was “because of dent committed in the eyes of his peers, with this harassment in violation of Title sex.” While conceding that the operative one doubts they would justify permitting IX, which provides that “no person in the wording of Title IX and Title VII differs, such intense harassment that he would feel United States shall, on the basis of sex, nonetheless the 8th Circuit court found compelled to withdraw from school due to be subjected to discrimination under any that the phrases used are virtually inter- feeling unsafe and unprotected after suffer- education program or activity receiving changeable and that a fair reading of Title ing physical attacks. Federal financial assistance.” This provi- IX also requires a showing of such motiva- Wolfe was represented on the appeal by sion has been invoked with some suc- tion. Arthur Benson of Kansas City. The school cess in some other cases to hold schools Wolfe had also argued that the trial district was represented by Christopher to account for severe homophobic bully- judge incorrectly failed to instruct the jury Heller. A.S.L. ing of gay students. However, there is no on Wolfe’s theory of the case, but the 8th settled Supreme Court precedent dealing Circuit found that Wolfe’s proposed in- 6th Circuit Holds Anti-Gay with the precise proof requirements to ap- struction on his theory of the case was not Bias in Operating Union Hiring ply the statute, apart from a holding that a “consistent with the law,” and that Wolfe Hall May Violate Duty of Fair school district which did not itself act in had failed to cite any legal authority sup- Representation under National a discriminatory way could be held liable porting his theory that Title IX would be Labor Relations Act if it exhibited deliberate indifference to the violated by showing that the plaintiff had known sexual harassment of a student. been the subject of name-calling which “at- The U.S. Court of Appeals for the Sixth In this case, Wolfe was proceeding on tacks the student’s masculinity.” Circuit held on August 2 that a gay em- the theory that the harassment of him was The court also rejected Wolfe’s argu- ployee who suffered discrimination at the sex-based because the anti-gay references ment that the trial court committed revers- hands of his union may have a claim against were intended to impugn his gender or ible error by empaneling a 12-person jury the union under the National Labor Rela- masculinity. In defense, the school district rather than the more usual 6-person jury tions Act’s Duty of Fair Representation. did not deny Wolfe’s factual allegations, for a federal civil trial. The trial court had Gilbert v. Country Music Association, 2011 but contended that his classmates were not responded to the defendants’ argument that WL 3288655, 112 Fair Emp. Prac. Cases taunting and harassing him because of his because Wolfe had gone to the press with (BNA) 1711 (not recommended for full- sex but rather because of his own bullying his story and generated significant media text publication). behavior and unpopularity. The jury, having attention, it was possible that a 6-person 174 September 2011 LESBIAN/GAY LAW NOTES

Marty Gilbert, an openly gay theater discrimination and discrimination based union practices. It is a shame, then, that professional, organizes awards shows for a on sex and gender stereotypes. While dis- the case was not selected for official pub- number of organizations through exclusive crimination based on the “degree to which lication, although the text is available on hiring agreements with Gilbert’s union, an individual conforms to traditional no- Westlaw and in commercial reporters (such Local 46. Gilbert’s troubles began while tions of what is appropriate for one’s gen- as BNA’s Fair Employment Practice Cas- working on the 2007 Country Music As- der,” Vickers v Fairfield Med. Ctr., 453 F.3d es). Stephen E. Woods sociation (CMA) Awards through a refer- at 757 (6th Cir. 2006), is barred by both ral from the union, when he was threatened statutes, it is well settled that “sexual orien- Deported Peruvian Civil Partner by a fellow union member named Milton tation is not a prohibited basis for discrimi- Wins New Hope In Appellate Jones. Jones, already facing charges for at- natory acts.” Id at 762. Ruling tacking “several homosexuals,” called Gil- The court points out that none of Gil- bert a “faggot” and threatened to stab him. bert’s allegations point to discrimination A unanimous decision by a panel of the Gilbert claims that he brought the in- based on his lack of conformity to sex ste- Philadelphia-based U.S. Court of Ap- cident to the attention of Local 46, after reotypes. Rather, the discrimination was peals for the 3rd Circuit gave new hope which they stopped referring him for jobs based on the fact that Gilbert is, in fact, gay. to Jair Izquierdo, a gay Peruvian who was altogether. Gilbert complained about the While the opinion sympathetically notes deported and separated from his civil union union’s lack of referrals, and the organiza- that the events described in the complaint partner last year after the Board of Immi- tion responded by changing its referral pro- are “deserving of condemnation,” it con- gration Appeals (BIA) upheld an Immigra- cess in an apparent attempt to legitimize cludes that they cannot be the basis for a tion Judge’s decision to deny asylum and a their refusal to recommend Gilbert for em- sex discrimination claim and that the dis- different panel of the 3rd Circuit denied ployment. In 2008 the union did not refer missal of those claims by the lower court his petition for review. Izquierdo v. At- Gilbert for his previous job with the CMA was proper. torney General, No. 11-1110 (U.S.Ct.App., awards, forcing him to contract directly Turning to Gilbert’s claim of breach 3rd Cir., August 24, 2011) (designated not with the CMA for “less distinguished and of duty of fair representation by Local 46 precedential). lower paying” work, and after Gilbert was and IATSE, the court first establishes the Izquierdo and his partner of five years, able to secure a job at the 2009 “Stellar standard of conduct required by all union Richard Dennis, had been living together Awards,” the union president personally activity as one to “serve the interests of all in New York City and had contracted a convinced the show organizers to rescind members without hostility or discrimina- New Jersey civil union, and Izquierdo had their employment agreement. tion toward any, to exercise its discretion petitioned for reopening of his case, pre- As if these incidents were not enough, with complete good faith and honesty, and senting new evidence about the dangerous Gilbert claims that the union also sent an to avoid arbitrary conduct.” Vaca v Sipes, situation for gay people in Peru, but he was “unsolicited forged letter…purported to be 386 U.S. 171 (1967). apprehended in a sting operation and de- sent from [a] third party” to CMA, Coun- This standard is especially important in ported to Peru - ironically, on the very day try Music Television (CMT), and MTVN Gilbert’s case involving the union’s hiring that the BIA denied his motion to reopen (the country music channel branded by hall, because, as the court notes, by operat- the case. MTV) describing Gilbert’s purported ing a hiring hall the union is assuming the The August 24 ruling on his appeal of “misconduct” at the 2008 CMA Awards. mantle of an employer and has a height- the denial of reopening criticized the BIA Gilbert denied any wrongdoing and asserts ened responsibility to ensure fairness in all decision as “flawed,” and ordered the case that the letter was sent in retaliation for his its practices. Gilbert’s allegations paint the sent back to the agency so that it could re- complaints. Nonetheless, the union filed union as engaging in arbitrary and irratio- consider based on the correct legal standard internal charges against him based on the nal conduct by not referring Gilbert for as instructed by the court. Immigration law events detailed in the letter, and suspended employment despite his credentials, and, in specialist Paul O’Dwyer represents Izqui- him for six months. regard to the forged letter sent by the union erdo. His suspension was the last straw, and to various employers, the court notes, the Gay foreign nationals seeking to remain Gilbert filed suit against Local 46, CMA, actions could constitute fraud and bad faith. in the United States as refugees can seek CMT, MTVN and the Artists and Allied Accordingly, the opinion reverses the lower asylum, which would allow them to stay Crafts of the United States and Canada court dismissal of the breach of duty of fair here and apply for citizenship. In order to (IATSE) in the District Court of Tennes- representation claim against Local 46. As gain asylum, they need to show that they see. All of his complaints were dismissed a final note, however, the court points out have a reasonable fear of persecution on ac- by the lower court on motion by the defen- that Gilbert has provided no evidence that count of their membership in a particular dants. Gilbert appealed the dismissal, but IATSE had any knowledge of Local 46’s social group if required to return to their only as to the discrimination and duty of actions, and notes that the two organiza- home country. The government recognizes fair representation claims against IATSE tions are separate entities. Since no link gay people as being part of a particular so- and Local 46. between Local 46’s conduct and IATSE cial group for this purpose. The problem is First addressing the discrimination was established, the dismissal of the claim providing sufficient, up-to-date documen- claim, the opinion notes that the Ten- against IATSE is affirmed. tation about a pattern of persecution of gay nessee Human Rights Act, like Title VII, This will be an interesting case to watch, people in the home country. distinguishes between sexual orientation as it may set an important precedent for LESBIAN/GAY LAW NOTES September 2011 175

If the petition for relief is filed too improvement in conditions for gay people current conditions in Peru are the relevant late to seek asylum, or if the petition falls there. Izquierdo petitioned the 3rd Circuit issue. short for other reasons, a person can still Court of Appeals to review the BIA deci- Furthermore, the court observed, the seek relief in the form of “withholding of sion, but his petition was denied in 2009. BIA was subjecting this evidence to the removal,” which would allow them to re- On October 20, 2010, he was appre- wrong legal test. As an asylum applicant, main in the United States, but this requires hended by Immigration Control and En- Izquierdo was claiming that there was a strong proof that the individual is likely to forcement (ICE) agents when he respond- “pattern or practice of persecution” of gay be subjected to persecution if returned to ed to a fake business request, and he was people in Peru, but the BIA was subject- his home country. Finally, if there is good placed in detention pending deportation. ing this evidence to the “withholding of evidence that the individual is likely to be His co-workers alerted Dennis, who con- removal” test, which would require an indi- subjected to torture (serious physical harm tacted his attorney, and a new petition was vidualized showing that he was likely to be or death) if returned to their home coun- filed to reopen his case. A 2009 State De- targeted for persecution. Indeed, the court try, they would be entitled to relief under partment report, which had not been avail- pointed out, even the government attor- the Convention Against Torture (CAT), a able at the time of his prior asylum hearing, neys responding to this appeal had virtu- treaty to which the United States is a party. together with more recent articles, showed ally conceded the BIA’s error on this point, Izquierdo arrived in the U.S. on a non- that conditions for gays remained very dan- by including a footnote in their brief sug- immigrant visa in October 2001, having gerous in Peru. But the BIA rejected his gesting that if the court disagreed with the left Peru to escape harassment from family petition on the same date he was deported, BIA’s conclusion that the new evidence did members. He overstayed his visa, having December 17. not warrant reopening the proceedings, it met Dennis and begun a relationship, but The BIA’s reasoning for denying the should send the case back “for the agency to removal proceedings were initiated against motion to reopen his case asserted that consider Izquierdo’s claim that he made out him. Conceding that he was removable, he the new evidence he offered “does not re- a prima facie case of a ‘pattern or practice’ applied for asylum or withholding of re- flect materially changed country conditions of persecution.” moval or relief under the CAT, based on his for homosexuals in his native Peru since “Given the above-noted flaws in the fear of encountering persecution as a gay this case was before the IJ in October of BIA’s analysis,” concluded the court, “we man in Peru. 2006. Rather, such evidence describes a cannot uphold its December 17, 2010, de- At a hearing before an Immigration continuance of the on-going and volatile cision on either of the two grounds articu- Judge (IJ) in October 2006, he presented circumstances that gave rise to [his] first lated by the agency.” But the court rejected detailed documentary evidence about the claim, a claim that was previously denied Izquierdo’s request to rule on the merits situation facing gay people in Peru. Sum- by both the [IJ] and the [BIA].” The BIA that he is entitled to return to the United marizing the evidence in a written decision went on to assert that a “generalized claim States, instead sending the case back to the denying relief, the IJ wrote that “(t)here are of increased harassment” was not sufficient BIA so it “can properly evaluate his mo- many instances where gays are not only dis- to establish that “there exists a reasonable tion to reopen,” and added, “We express criminated against, but there’s actual physi- possibility that [he] would be targeted for no opinion on his ability to prevail on that cal beatings at the hands of the authorities. harm rising to the level of persecution on motion.” There’s also evidence that the authorities account of a protected ground.” The BIA The court’s decision never mentions Iz- stand around and allow gays to be harmed.” said that evidence of the likelihood of tor- quierdo’s partner or his civil union status, This appears to meet the standard, but the ture was lacking as well. but perhaps when the case is sent back to IJ incorrectly concluded that he could not Finding that “the reasoning underly- the BIA, the new approach announced by make a finding of a “pattern or practice of ing” the BIA’s conclusion is “flawed,” the the Obama Administration to deal with persecution” because, he said, he could not 3rd Circuit highlighted the internal con- the issue of same-sex binational couples find any appellate court authority concern- tradictions. Whereas the BIA’s first deci- might contribute to the reconsideration of ing such a situation in Peru. sion rejected relief on the ground that the the case. A few weeks ago, the Adminis- The BIA upheld the IJ’s denial of re- 2006 hearing evidence showed things were tration announced that it was refocusing lief, in a strangely contradictory opinion. getting better, the new decision rejected its deportation efforts to concentrate on While finding that the IJ was mistaken in more recent evidence on the ground that removing criminals, and directed that ICE thinking he could not grant relief in the it “describes a continuance of the on-going use its prosecutorial discretion in a way that absence of any appellate judicial precedent and volatile circumstances” that gave rise would avoid breaking up families, includ- about Peru, the BIA decided that the evi- to his original claim, and so added nothing ing LGBT families. Several IJ decisions in dence in the record was insufficient to -es new. Either the earlier decision was wrong recent months have taken this approach, tablish the current situation there, because in finding that things were getting better, delaying or deferring deportation proceed- the incidents of beatings and persecutions or the new evidence is correct in showing ings in light of established same-sex re- were based on “older articles,” some dating that the “on-going and volatile circum- lationships (in some cases civil unions or back as far as twelve years, and the most stances” described in the older sources were marriages). Certainly, Izquierdo and Den- recent documents “relate primarily to inci- continuing. Thus, it is possible that the nis, who lived together for five years and dents against transvestite activists.” As of newer evidence negates the BIA’s original contracted a civil union, should qualify for 2006, the most recent State Department decision, and should have been considered such consideration. A.S.L. country reports about Peru suggested some as a basis for reopening the case, because 176 September 2011 LESBIAN/GAY LAW NOTES

9th Circuit Holds University non-recognized groups like Plaintiffs to case presents an important issue of First Can Deny Recognition to use campus facilities for meetings, to set up Amendment jurisprudence, which the Su- Discriminatory Religious Student tables and displays in public areas, and to preme Court explicitly reserved in Chris- Groups distribute literature.” tian Legal Society.” Judge Ripple stated Plaintiffs had argued that the policy that “under [the] policy, most clubs can The 9th Circuit held that San Diego State “discriminates on the basis of viewpoint be- limit their membership to those who share University’s policy of refusing to recognize cause it allows secular belief-based discrim- a common purpose or view… clubs whose student groups that restricted membership ination while prohibiting religious belief- membership are defined by issues involving to students who met religious requirements based discrimination,” stating that under “protected” categories, however, are required such as “personal acceptance of Jesus Christ the policy a student Republican organiza- to welcome into their ranks and leadership as Lord and Savior,” “active participation in tion could permissibly exclude a Democrat, those who do not share the group’s perspec- Christian service,” and “regular attendance but a Christian group could not exclude tive” providing the example of “homosexual or membership in an evangelical church” a Muslim because such exclusion would students, who have suffered discrimina- did not run afoul of the First and Four- discriminate on the basis of religion. The tion or ostracism, may not both limit their teenth Amendments of the Constitution panel held that the argument, “while seem- membership to homosexuals and enjoy the in Alpha Delta v. Reed, 2011 WL 3275950 ingly compelling at first glance, does not benefits of official recognition.” (August 2, 2011), but remanded the case for survive closer scrutiny,” noting that there Judge Ripple, however stated that while further proceedings to determine whether was no evidence that San Diego State “im- “most groups dedicated to forwarding the constitutionally sound policy had been plemented its nondiscrimination policy for the rights of a ‘protected’ group are able selectively enforced. the purpose of suppressing Plaintiffs’ view- to couch their membership requirements The issue decided by a panel of the point, or indeed of restricting any sort of in terms of shared beliefs, as opposed to 9th Circuit was that specifically reserved expression at all” and that Supreme Court shared status,… religious students, how- by the U.S. Supreme Court in Christian precedent has held that nondiscrimination ever, do not have this luxury – their shared Legal Society v. Martinez, 130 S. Ct. 1971 policies designed to “ensure equal access to beliefs coincide with their shared status.” (2010): whether that Court’s holding that the benefits of society serve goals ‘unrelated Judge Ripple concludes that “the net result recognition of a student group based on an to the suppression of expression’ and are of this selective policy is therefore to mar- “all-comers” policy extended to “a narrower neutral as to both content and viewpoint.” ginalize in the life of the institution those nondiscrimination policy that, instead of The panel recognized that “content-neu- activities, practices and discourses that are prohibiting all membership restrictions, tral antidiscrimination laws can nonethe- religiously based,” and accordingly con- prohibited membership restrictions only less violate the First Amendment right to curred in the judgment of the court. Bryan on certain specified bases, for example, race, expressive association when used to force C. Johnson gender, religion, and sexual orientation.” a private group to accept members who Plaintiffs, Christian sorority Alpha materially interfere with the message the First New York Appellate Ruling Delta Chi and Christian fraternity Alpha group wishes to express,” but noted that Dissolving a Vermont Civil Union Gamma Omega, had repeatedly been de- here, the Plaintiffs “are free to express any nied official recognition as student organi- message they wish, and may include or ex- New York courts have been nibbling around zations by San Diego State University on clude members on whatever basis they like; the issue of terminating out-of-state civil the grounds that they failed to satisfy the they simply cannot oblige the university to unions for a while now, but on July 21, a University’s non-discrimination policy for- subsidize them as they do so.” New York Appellate Division panel took bidding recognition of any group “which The panel held that a remand was nec- the decisive step in Dickerson v. Thompson, discriminates on the basis of race, religion, essary in this case because there was “evi- 2011 WL 2899241, 2011 N.Y. Slip Op. national origin, ethnicity, color, age, gender, dence that San Diego State has granted 06009 (3rd Dep’t.). Having previously held marital status, citizenship, sexual orienta- official recognition to some religious stu- at an earlier stage in this case that Supreme tion, or disability.” Plaintiffs sued alleg- dent groups even though those groups, like Court has jurisdiction in law and equity ing violations of the First and Fourteenth Plaintiffs, restrict membership or eligibility sufficient to rule on the merits of a petition Amendments of the U.S. Constitution. to hold office based on religious belief.” -Fi seeking dissolution of an out-of-state civil A panel of the 9th Circuit applied a nally, the panel held that although “as writ- union entered by New York residents, the de novo standard of review, holding that ten, San Diego State’s policy violates nei- court disapproved the trial court’s limited such standard was applicable to university ther the Free Exercise Clause nor the Equal remedy and modified that court’s ruling to student groups, which the U.S. Supreme Protection Clause,” “given the evidence that provide that the civil union was dissolved. Court in Christian Legal Society had held San Diego State may have granted certain Beginning in 2000, same-sex couples were a “limited public forum.” The panel groups exemptions from the policy, there could go to Vermont to get civil unions held that the University’s policy was “rea- remains a question whether Plaintiffs have without fulfilling any residency require- sonable in light of the purpose of the stu- been treated differently because of their re- ment, and many did so. The problem came dent organization program,” based on the ligious status.” in terminating those civil unions. Ver- school’s “nondiscrimination policy aligned In his concurrence, Senior Circuit Judge mont, in common with almost every other with the school’s pedagogical goals” as well Kenneth F. Ripple (7th Cir., sitting by des- state, has a real residency requirement for as the fact that San Diego State “allows ignation), wrote separately “because this divorce cases, and when they passed the LESBIAN/GAY LAW NOTES September 2011 177

Civil Unions Act, they adopted the same Thus instructed, Justice Reilly decided that son and Dickerson no longer considered requirement for dissolving civil unions. in this case equity would support issuing a themselves partners. Couples who returned to their home states declaration that Dickerson and Thompson Thus, it was important for Dickerson were stuck if they wanted to dissolve their were free of all the rights and responsi- to be able to get the civil union dissolved civil union. Either one member of the cou- bilities incident to their civil union, but he in order to get on with her life. “These ple had to relocate to live in Vermont for a persisted in his view that “in the absence chilling effects, both potential and actual, year, or they could just try to ignore the fact of any legislatively created mechanism in flowing from plaintiff ’s continued status that they had a civil union, or they could try New York by which a court could grant the as a partner to the civil union further sup- to get a home state court to dissolve it. dissolution of a civil union entered into in port our conclusion that the exercise of the This was the problem faced by Audrey another state, [the court] was powerless to court’s equitable power to dissolve the par- Dickerson. She and Sonya Thompson, her grant the requested relief.” ties’ civil union was warranted,” wrote Jus- partner at the time, went to Vermont in Dickerson brought the case back to the tice Peters. “Indeed, it would be patently April 2003 to get civilly united, and then Appellate Division, arguing that the eq- incongruous for the courts of this state to returned home to New York. But their rela- uity jurisdiction of the Supreme Court was render civil unions more durable than mar- tionship subsequently deteriorated in sub- broad enough to dissolve the civil union, riages.”” The court noted that several New stantial ways, to judge by the court’s opin- and the Appellate Division agreed. “While York trial courts had issued orders dissolv- ion. Writes Justice Karen K. Peters, “Here, plaintiff lacks a remedy at law,” wrote Jus- ing civil unions after the Appellate Division the uncontested evidence submitted by tice Peters, “the dissolution of a civil union issued its first jurisdictional ruling in this plaintiff establishes that, during the course falls squarely within the scope of the Su- case, so trial judges in Monroe, Erie, New of the parties’ relationship, defendant had preme Court’s broad equity jurisdiction.” York, Tompkins, Onondaga, and Westches- subjected her to violent physical abuse on The court quoted numerous prior decisions ter counties had not felt constrained by the several occasions and was verbally abusive demonstrating the breadth of equity juris- concerns that Justice Reilly articulated. to both her and her autistic son on a daily diction, which is intended to give the court While all five members of the -Appel basis. Defendant also stole from her, re- great leeway to try to achieve a just result late Division panel agreed with the re- sulting in defendant’s criminal conviction between the parties to a legal dispute that sult, Justice John A. Lahtinen, writing for of grand larceny, and removed the license is not controlled by specific statutory or es- himself and Justice Bernard J. Malone, Jr., plates from plaintiff ’s vehicle to prevent tablished common law doctrinal rules. concurred separately, observing that they her and her son from escaping defendant’s The court found that “the exercise of thought that Justice Reilly’s decision was abusive conduct. Furthermore, the par- Supreme Court’s equitable powers to grant sufficient, since it declared that neither ties have lived apart since April 2006 and a dissolution of the civil union was clearly party was bound by the rights or responsi- plaintiff has alleged facts demonstrating warranted here,” because Dickerson needed bilities of the civil union. This, they opined, that resumption of the civil union is not a judicial remedy and, due to Vermont’s res- could be sufficient to prevent the problems probable.” idency requirement, could not obtain it in identified by the majority. Yet they con- Dickerson filed a lawsuit against that state without moving there, effectively curred because they agreed that the equity Thompson in Schenectady County Su- leaving her without a remedy for her prob- jurisdiction of the court was broad enough preme Court, seeking a dissolution of her lem as a New York resident who wished to to dissolve the civil union. civil union. Thompson, who evidently remain a New York resident The problem Audrey Dickerson was represented by had no interest in continuing the relation- itself, as described by the court, was that an Amy Schwartz of the Domestic Violence ship, failed to respond to the complaint, undissolved civil union could have serious Legal Project in Rochester, with amicus and Dickerson moved for a default judg- consequences down the road because of its assistance from Thomas W. Ude, Jr., of ment granting the relief she requested. But continuing potential effect on the rights Lambda Legal. As Sonya Thompson de- Justice Vincent J. Reilly, Jr., dismissed the and responsibilities of the parties. The faulted in this case and Dickerson has complaint, finding that he had no- sub court noted that somebody who is a party achieved the remedy she sought on appeal, ject matter jurisdiction. Since New York to a civil union is precluded from entering there will be no further appeal in this case did not have the legal institution of a civil into a new civil union with anybody else, and the court’s ruling is final. Under New union, and the divorce law was only avail- and presumably would also have problems York practice, a decision by a panel of the able to dissolve marriages, Reilly opined getting married. It would certainly stand Appellate Division has statewide prec- that he lacked the authority to act on the in the way of entering into a New York edential effect on trial courts unless or until complaint. City domestic partnership and, after July another Appellate Division panel disagrees Dickerson appealed, and the Appellate 24,wcould preclude Dickerson from marry- with it or it is reversed or overruled by the Division reversed, see 73 App.Div.3d 52 ing a new partner. Also, the court pointed Court of Appeals. A.S.L. (2010), finding that the Supreme Court out, if Dickerson became pregnant through can exercise its general equitable jurisdic- donor insemination, Thompson could au- tion to deal with a legal issue such as this tomatically be considered the legal parent one. Without suggesting what the out- of that child under Vermont law, and there come should be, the Appellate Division is New York precedent suggesting that she sent the case back to Justice Reilly, with in- could be considered a parent of the child structions to do equity between the parties. under New York law, even though Thomp- 178 September 2011 LESBIAN/GAY LAW NOTES

McDonald’s Franchisee on 42d claimed damages for intentional infliction one-year statute of limitations had passed. Street in Manhattan May Face of emotional distress. A.S.L. Liability for Harassment of Gay The McDonald’s operator argued that Customers it should not be held responsible for what New York Court Dissolves happened to the two men, claiming that Vermont Civil Union After New York Supreme Court Justice Do- the complaint failed to specify any discrim- Determining Parental Status ris Ling-Cohan has rejected a motion to inatory acts perpetrated or condoned by the Issues dismiss a discrimination claim brought by company. But, countered Justice Ling-Co- two gay men who claim to have been ha- han, “If an employer fails even to discipline In Wesley v. Smith-Lasofsky, 105819/10, rassed by security guards at a McDonald’s an employee in response to that employee’s NYLJ 1202508854947, at *1 (Sup., NY, Restaurant on 42nd Street in Manhat- discriminatory conduct, the employer may Decided July 18, 2011), New York County tan on November 26, 2008. The two men, be found to have condoned such improp- Supreme Court, in a ruling it termed as Bowling and Barton, sought damages for er conduct.” She noted that the operator limited to the specific and unique facts of discrimination and intentional infliction hadn’t presented any evidence to contradict the proceeding, held that one partner to a of emotional distress. Justice Ling-Cohan the story presented by the plaintiffs, “such Vermont civil union has no parental rights dismissed the emotional distress claim in as proof of a non-discriminatory policy be- or obligations to a child adopted by the her ruling filed on July 12, 2011. Bowl- ing in place prior to the incident, or dis- other partner when the couple separated ing v. 220 W. 42nd St., LLC, 2011 N.Y. cipline of the guards who actually perpe- prior to the adoption and no parental rela- Slip Op 31938(U), Index No.: 104717/09 trated the alleged improper conduct,” so tionship was formed with the child by the (N.Y.Sup.Ct., N.Y. Co., July 7, 2011). it would not be appropriate to dismiss the non-adoptive parent. After reaching that According to their complaint, Bowling complaint prior to any pre-trial discovery. issue, the court granted an order dissolving and Barton entered the McDonalds restau- The security contractor argued that it the civil union. rant at 220 W. 42nd Street and placed their should not be held liable for the actions of The plaintiff, Wesley, a New York resi- order. While waiting for their order to its employees under the theory of “respon- dent, sought a declaratory judgment dis- be filled, they exchanged kisses and found deat superior” (under which employers are solving the Vermont civil union entered themselves confronted by two security usually held liable for harms committed by into between himself and the defendant, guards, who subjected them to a stream of their employees while they are working), Smith-Lasofsky. The defendant joined in foul-mouthed anti-gay slurs. because the behavior alleged in this case the application for the dissolution. Though According to the brief filed in opposi- was “not within the scope” of their employ- the parties sought only the dissolution of tion to the motion to dismiss their case, ment and was personally motivated. Jus- the civil union, Justice Laura Drager de- they claimed that they “were repeatedly tice Ling-Cohan found that the contractor termined that because the adoption of the and maliciously intimidated by the guards had failed to cite any cases supporting such plaintiff ’s biological niece took place dur- through their use of the slur ‘faggot’ and an argument. “There is no evidence that ing the term of the civil union, the court the threats made against them, and which Security did not condone the improper ac- needed to consider the defendant’s rights forced them out of the McDonald’s res- tions of the security guards in its employ,” and obligations regarding the child before taurant, including ‘faggots aren’t allowed in she wrote, and “it may be liable for its own granting a judgment of dissolution. this McDonald’s; faggots like you get killed inaction.” Both Wesley and Smith-Lasofsky were in places like this; I’ll kill you faggot; I’ll However, she found the statutory provi- New York residents at the time they en- kill you; I’ll take you outside and kill your sion on boycotting and picketing was not tered into the civil union in Vermont in faggot ass; and get that faggot shit out of intended to apply to this kind of case, a 2003. Later in 2003 the couple moved to here.” Some other customers called the one-time occurrence of discrimination, and Texas, and they subsequently ended their police, who shortly arrived. Bowling and that the facts alleged were inadequate to relationship without formally terminat- Barton claim that a McDonald’s employee support a claim of damages for intentional ing their civil union. In 2005, Wesley ad- asked them to wait outside, and another infliction of emotional distress, as a sepa- opted his biological niece in the state of employee later brought their order out to rate tort claim apart from the discrimina- Texas. Since 2006, Wesley has resided in them. tion claim under the Human Rights Law. New York, and Smith-Lasofsky in Califor- They sued the franchise owners of the New York courts have set a very high bar nia. The latter has met the child on several restaurant and the subcontractor that em- for tort claims of intentional infliction of friendly visits, but the child does not con- ploys the security guards. Their primary emotional distress, requiring outrageous sider him to be a father figure. claim was a violation of the State Human conduct perpetrated over a period of time, a The plaintiff did not request child sup- Rights Law provision forbidding sexual virtual campaign of harassment and humil- port, and the defendant did not request orientation discrimination against custom- iation. In this case, five minutes of offen- custody or visitation rights. Accordingly, ers by places of public accommodation. sive and threatening language was deemed from the parties’ perspective, the only issue They also charged a violation of another insufficient to meet the test set by the state’s before the court was the dissolution of their provision in the Human Rights Law con- appellate courts. Besides, the judge found, civil union. cerning “boycotts, blacklisting and refusal the emotional distress claim was first -as The court, however, began its analysis to deal” based on sexual orientation, and serted against the franchise owner after the by noting that under Vermont law, a civil union entitles a couple the same rights as a LESBIAN/GAY LAW NOTES September 2011 179 married couple with respect to children ei- way we would expect opposite-sex couples and that Louis’s placement in the SMU was ther party becomes a natural parent of dur- to be treated. That is, resolving the poten- not unreasonable under the circumstances. ing the term of the civil union. The court tial rights and obligations with respect to a Louis filed an interlocutory appeal. The also noted that the adoption order issued in child adopted during the course of the civil circuit court, issuing its decision per curi- Texas was entitled to full faith and credit. union were considered an essential step be- am, upheld the ruling of the district court, As a result, the court then considered fore the dissolution would be granted. John specifically finding that Louis could not existing New York Court of Appeals deci- Teufel and Brad Snyder. point to evidence of any continuing dan- sions regarding Vermont civil unions and ger beyond “speculation,” and as such could custody, most notably Debra H. v. Janice R., 3rd Circuit Affirms Denial of not demonstrate the immediate irreparable 14 N.Y.3d 576 (2010). Private Cell for Transsexual injury required for preliminary injunctive In Debra H., a woman became preg- Inmate relief to be afforded. John Teufel nant through donor insemination and then entered into a civil union with another In Louis v. Bledsoe, 2011 WL 2938128 ( July Trans Inmate Wins a Day in Court woman. She subsequently gave birth to the 22, 2011), the U.S. Court of Appeals for the Against Rehab Center child. The Court of Appeals held that the 3rd Circuit affirmed per curiam a Pennsyl- non-biological parent was entitled to cus- vania district court decision denying the U.S. District Court Judge Denise Cote tody rights. Justice Drager distinguished request of a federal prisoner identifying as ruled in Wilson v. Phoenix House, 10 Civ. Debra H. in several ways. First, she noted “transsexual” who feared for his safety and 7364 (DLC) (S.D.N.Y., Aug. 1, 2011) that the present defendant is not seeking sought a temporary restraining order and/ [NYLJ 120251147, at *1], that a transgen- custody. Second, the court quoted Ver- or preliminary injunctive relief allowing der inmate could proceed with her constitu- mont’s statutory language regarding civil him to cell alone for the remainder of his tional and statutory discrimination claims unions to note that the law as written en- sentence. against an in-patient substance abuse treat- titles both spouses to parental rights only The plaintiff-prisoner, Gerard Louis, had ment center that denied her the opportu- when a child is naturally born to one of the been raped twice before, albeit in a different nity to participate in the support group of spouses during the civil union. Adoption, prison, while in the custody of the Bureau her preferred gender. The opinion, pub- which is what took place in the case be- of Prisons. The current action alleged that lished in the August 19 edition of the New fore the court, is not covered by the statute. he was housed with an “aggressive homo- York Law Journal, is particularly interesting Third, unlike in Debra H., the defendant is sexual inmate” who was sexually harass- in holding that the NY state human rights neither a biological nor an adoptive parent ing him and engaging in sexually abusive law’s ban on housing discrimination could of the child. behavior. After reporting this behavior to be applied to a residential treatment facility. The court also distinguished a second the prison authorities, he was almost im- According to Sabire Wilson’s complaint, New York Court of Appeals case, Shondel mediately separated from his cellmate and she is a pre-operative male-to-female J. v. Mark D., 7 N.Y.3d 320 (2006). In that transferred to the Special Management transsexual, who was arrested for drug pos- case, the Court of Appeals imposed obli- Unit (“SMU”), a more thoroughly policed session on March 27, 2008. Under a plea gations of paternity on a spouse who was unit with enhanced behavior restrictions. agreement, she entered New York’s Drug not biologically related to a child born to Louis had testified that he still feared Treatment Alternative to Prison, under his former girlfriend, but who had “held being raped within the SMU because dan- which she would voluntarily admit herself himself out as the child’s father” based on gerous inmates were also housed there. to a residential treatment facility instead the mistaken belief that the child was his He also expressed dissatisfaction with the of spending time in prison. She selected biological offspring. In this instant case, stricter restrictions imposed in the unit and Phoenix House, allegedly because of its Justice Drager pointed out, the defendant considered them a punishment for speak- published policy of non-discrimination had never held himself out as a parent to ing up about his victimization. on the basis of sex or sexual orientation. the plaintiff ’s niece, and she had never re- Accordingly, Louis requested his remov- When she was admitted to the facility on lied upon him as a parent. al from the SMU and that he be allowed December 23, 2008, she told the staff about For all these reasons, the court empha- to finish the remainder of his sentence in a her gender identity. She was required to sized that its holding was a narrow one lim- single cell assignment. sleep in male facilities and use male bath- ited to the specific facts of the case. During lower court proceedings, prison rooms, but was allowed to dress as female. In sum, the court, citing primarily to officials testified that the sexual abuse pro- Wrote Judge Cote, “In early January Dickerson v. Thompson, 73 A.D. 3d 52 (3rd tocol was immediately implemented upon 2009, a senior counselor permitted Wilson Dep’t 2010), easily determined that it had hearing Louis’s initial complaint, which in- to participate in a new gender-specific re- jurisdiction to dissolve the civil union, cluded the separation from his current cell- covery group” that was all-female, but when which was the basis for the action before the mate, and that the SMU was the only place the group started, some of the members court. The court’s additional consideration in the prison where Louis’s safety could be complained about Wilson’s participation of rights with respect to an adopted child, guaranteed. and she was asked to leave. She appealed even when the parties did not request such The lower court held that because of the decision to a counselor, who said she adjudication, provides another example of this placement to a safer area in the prison, shouldn’t have been given permission to a New York court treating gay couples in Louis could not show the irreparable harm participate in the first place, and refused to civil unions or marriages in much the same required for preliminary injunctive relief let her attend the group. When she asked 180 September 2011 LESBIAN/GAY LAW NOTES to speak to the counselor’s supervisor, she have not identified any support for their mary judgment motion. Unfortunately, was told that the supervisor supported the argument that Phoenix House is not the whoever made the decision to delay publi- counselor’s decision and it was final. She ‘owner, lessee, sub-lessee, assignee, or man- cation of the court’s decision until virtually persisted in demanding admission to the aging agent of ’ a ‘housing accommodation’ three weeks after it was issued may have group, and Phoenix House discharged within the meaning” of the relevant statu- precluded this option. A.S.L. her to the court. She currently resides at tory provisions. Southport Correctional Facility. Judge Cote did not discuss the point, National Organization for Wilson filed this federal court action on but it is important to this case that several Marriage Strikes Out in her own, alleging denial of equal protection New York courts have ruled that the state Challenges to Maine & Rhode of the law and violation of the state’s Hu- Human Rights Law’s provisions on sex and Island Disclosure Laws man Rights Law, as well as false advertising sexual orientation discrimination include in violation of a federal statute. Phoenix discrimination based on gender identity, The National Organization for Marriage House asserted that the case should be dis- even though that phrase is not expressed in (NOM), a New Jersey-based non-profit missed under the Prison Litigation Reform the statute. Attempts to pass the Gender political organization dedicated to fight- Act, which bans prisoner suits unless ad- Identity Non-Discrimination Act (GEN- ing against same-sex marriage, has lost its ministrative remedies are first exhausted, DA) have faltered in several sessions of the constitutional challenges to campaign dis- and also claimed that as a private facility, it legislature. It is hard to understand why, closure laws in Maine and Rhode Island. was not subject to constitutional suit. The when the courts have amended the law “de In a pair of opinions by Judge Kermit Li- defendant also sought dismissal of the false facto” to cover such cases, and don’t seem to pez, the Boston-based U.S. Court of Ap- advertising claim as not being covered by have taken the failure of the legislation as a peals for the 1st Circuit ruled on August the statute, and argued that the state hu- reason to back away from their interpreta- 11 that neither of the states’ laws suffered man rights law did not apply to this situ- tion. To be on the safe side, however, where from the constitutional defects alleged by ation. appropriate it would be a good idea in cases NOM. National Organization for Marriage Judge Cote agreed with Phoenix House like these to also assert a claim under the v. McKee, Nos. 10-2000 & 10-2049; Na- that the advertising claim was not viable, New York City Human Rights Ordinance, tional Organization for Marriage v. Daluz, finding that the federal statute was not which explicitly includes gender identity. No. 10-2304. intended to cover this kind of situation. That would depend, of course, on whether NOM’s lawsuit parallels recent efforts But she rejected the argument that Phoe- the defendant was operating within New by anti-gay forces in California and Wash- nix House could not be sued on an equal York City. ington State to avoid having to disclose the protection claim, that the PLRA barred the In this case, as noted above, Wilson filed identity of donors and petition-signers in suit, or that the human rights law did not her court complaint on her own, without a support of their efforts to oppose same-sex apply. lawyer. After all the papers were submitted marriage and civil unions in referenda. Last Since Phoenix House was accepting on Phoenix House’s motion, Wilson sent year, the U.S. Supreme Court ruled in Doe criminal defendants under these plea bar- a letter to the court, asking that the case v. Reed, 130 S. Ct. 2811 ( June 24, 2010), gain arrangements and was compensated be dismissed without prejudice because she that a state requirement to disclose the by the state, there was enough of a “nexus” had limited access to the prison law library identity of petition-signers did not gener- with the government to justify applying and was not in a position to fully oppose ally violate the 1st Amendment rights of constitutional standards. As to the exhaus- the motion. Judge Cote decided the mo- advocacy organizations, finding that a state tion requirement, it was up to the defendant tion anyway, since all the papers had been policy requiring speakers to identify them- to show that there were procedures avail- submitted, and commented, in a footnote: selves in electoral contests was sufficiently able that Wilson did not use. She com- “Since Wilson filed her notice of voluntary important to overcome whatever deterrent plained to her counselor, and her attempt dismissal after the defendant’s February 9 effect disclosure might have, in the absence to appeal to higher authority was rebuffed. motion to dismiss became fully submitted, of evidence of credible threats of harm. There was no showing that the grievance she will be given three weeks from the date In the Maine and Rhode Island cases, and appeal system used by the NY Depart- of this Opinion to indicate whether she still NOM made similar arguments that requir- ment of Corrections was applicable to this wishes to voluntarily dismiss the case.” ing disclosure of donors would deter politi- deferral treatment program. Now that Wilson has largely defeated cal speech unconstitutionally, but it didn’t Wilson’s claim under the Human Rights the motion to dismiss, she may want to get very far with District Judges Brock Law was premised on a violation of the reconsider if she can find voluntary coun- Hornby (Maine) or Mary Lisi (Rhode provision barring housing discrimination sel. The question whether a pre-operative Island), neither of whom accepted the ar- based on sex or sexual orientation, claim- transgender inmate of a residential treat- gument. Judge Hornby did grant NOM ing Phoenix House failed to accommodate ment facility can participate in treatment as a small partial victory by finding one por- her gender identity. Phoenix House argued a member of her preferred gender strikes tion of the Maine statute unduly vague, but that the housing discrimination provision me as a significant legal issue. Perhaps a NOM lost that victory on appeal, because was aimed at landlords, not residential public interest firm concerned with trans- the court of appeals found, in light of the treatment facilities, but Judge Cote, rely- gender rights could take this case up, as a definition of the term “for the purpose of ing on the statutory definition of “housing pro se prisoner is really not in a good posi- influencing” embraced by the Maine en- accommodation,” pointed out, “Defendants tion to conduct discover and litigate a sum- LESBIAN/GAY LAW NOTES September 2011 181 forcement agency, that the term was not leaders withdrew the marriage bill, instead opinion, the court was satisfied by a Maine too vague to meet constitutional standards. passing a civil union measure over the pro- Commission interpretation, “in the con- The court expended most of its effort on test of gay rights forces in the state. These text of ballot-question campaigns, to ‘in- the opinion about Maine’s law, and then political successes by NOM undoubtedly clude communications and activities which produced a brief opinion on the Rhode undercut its credibility in arguing that the expressly advocate for or against a ballot Island law relying on its analysis in the disclosure laws were curtailing its ability to question or which clearly identify a ballot Maine case. “After careful consideration of influence policy decisions in either of those question by apparent and unambiguous ref- the parties’ arguments and key precedents,” states. erence and are susceptible of no reasonable wrote Judge Lipez for the court, “we con- Judge Lipez explained the rationale interpretation other than to promote or op- clude that Maine’s laws pass constitutional for requiring disclosure, derived from the pose the ballot question.” muster. Central to our holding is the nature Supreme Court’s comments in Citizens NOM was represented in these appeals of the laws NOM challenges here. These United. That case was focused on expen- by James Bopp, Jr., of the James Madison provisions neither erect a barrier to political ditures to advocate against election of a Center for Free Speech, a conservative liti- speech nor limit its quantity. Rather, they particular candidate. “However, the infor- gation group. In the Maine case, state gov- promote the dissemination of information mation interest is not limited to informing ernment attorneys enjoyed amicus support about those who deliver and finance -po the choice between candidates for political from the Maine Citizens for Clean Elec- litical speech, thereby encouraging efficient office,” wrote Lipez. “As Citizens United tions, and, in the Rhode Island case, from operation of the marketplace of ideas. As recognized, there is an equally compelling Gay and Lesbian Advocates and Defenders the Supreme Court recently observed, such interest in identifying the speakers behind and Common Cause Rhode Island. A.S.L. compulsory ‘transparency enables the elec- politically oriented messages. In an age torate to make informed decisions and give characterized by the rapid multiplication of New Jersey Federal District Court proper weight to different speakers and media outlets and the rise of internet re- Rejects Religious Discrimination messages,’” quoting from that court’s rul- porting, the ‘marketplace of ideas’ has be- Claim by Anti-Gay Supervisor ing in Citizens United v. Federal Elections come flooded with a profusion of informa- Commission, 130 S.Ct. 876 (2010). “While tion and political messages. Citizens rely U.S. District Judge Stanley R. Chesler we acknowledge that disclosure can, in ever more on a message’s source as a proxy granted summary judgment to defendant some cases, unduly burden or chill politi- for reliability and a barometer of political Pfizer, Inc., rejecting a religious discrimi- cal speech,” Judge Lipez continued, “there spin. Disclosing the identity and con- nation claim brought by a “born again is no evidence that the Maine laws at issue stituency of a speaker engaged in political Christian” supervisor who was dismissed here have had such a deleterious effect on speech thus ‘enables the electorate to make for making discriminatory remarks to em- NOM or its constitutents.” informed decisions and give proper weight ployees. Miller v. Pfizer, Inc., 2011 WL NOM attempted to use the Citizens to different speakers and messages,’” he 3273620, 112 FEP Cases (BNA) 1637 United case, which struck down federal re- wrote, quoting from Citizens United. (D.N.J., July 28, 2011) (unpublished opin- strictions on expenditures by corporations The court also found that the obligations ion). Judge Chesler found that Garrett in federal elections, to attack the Maine imposed by the Maine and Rhode Island Miller’s factual allegations fell short on two and Rhode Island statutes, attempting to laws were not unduly burdensome, and that counts: he failed to satisfy the requirements use the “strict scrutiny” judicial review stan- NOM could not challenge the dollar cut- to plead a prima facie case and he failed to dard that the Supreme Court adopted for off - set relatively low in both states - for show that the non-discriminatory reason laws that curtail campaign expenditures. reporting requirements, since that repre- articulated for the discharge by Pfizer was But the 1st Circuit found that this was not sented political judgments that the state pretextual. the appropriate standard, inasmuch as nei- legislatures were entitled to make, and that According to Judge Chesler’s opinion, ther Maine nor Rhode Island was putting the judiciary should generally defer to such Miller began working for Pfizer in 1989 and a limit on expenditures, much less prohibit- “plausible legislative judgments.” was promoted to District Manager in 2007. ing them. Rather, both states were merely The court also rejected NOM’s argument In May 2007, an employee working under trying to make the electoral process more against attribution requirements — man- his supervision complained to her former transparent by ensuring that voters would dates that advertisements expressly identify manager about comments Miller made have access to information about who was their source of funding. “The requirements to her and other workers regarding sexual supporting particular efforts. are minimal,” wrote Lipez, “calling only for orientation, religion and gender. Accord- NOM played a significant role in help- a statement of whether the message was ing to this employee, Miller had indicated, ing to pass a referendum that repealed the authorized by the candidate and disclosure among other things, that he had “no respect Maine Marriage Equality Law, which was of the name and address of the person who for gays and lesbians,” could not “believe approved by the legislature and governor made or financed the communication.” The that there are Jews in Paterson,” character- but never went into effect because peti- court pointed out that these “are precisely ized Jehovah’s Witnesses as “a cult,” spoke tion signatures were filed before its effec- the requirements approved in Citizens about preferences for hiring men, made tive date. In Rhode Island, NOM has United.” negative comments about having children actively lobbied the legislature to prevent As to the dispute about the “vague- in interfaith marriages, and indicated man- enactment of a same-sex marriage bill, and ness” of requiring funding disclosure for agement would not look favorably upon was sufficiently successful that legislative measures intended to “influence” public paternity leave. The company investigated 182 September 2011 LESBIAN/GAY LAW NOTES and determined that Miller had made the The Obama Administration’s went public with a new approach on August comments in question, some of which he Temporary “Fix” for the Bi- 18, in a letter by the Secretary of Homeland readily admitted. The company’s Employee National Same-Sex Couple Security, Janet Napolitano, to U.S. Senate Relations Panel recommended dismissal, Problem Majority Leader Harry Reid. Reid had and their recommendation was accepted written on behalf of himself and a group because of Miller’s “inappropriate and dis- An important part of the federal-level gay of other senators who are co-sponsors of criminatory remarks; continued failure to rights agenda has been attempting to find the DREAM Act, legislation intended to recognize the inappropriate and discrimi- a way around the failure of federal law to provide favored immigration status for for- natory nature of his remarks; and failure to acknowledge the reality of bi-national eign nationals who serve in the U.S. Armed show accountability for them.” same-sex couple families for purposes of Forces and for individuals brought to the Miller filed suit under the N.J. Law immigration law. Nobody knows exactly U.S. as children who have grown up here Against Discrimination in federal court how many people are affected by this, but and sought and obtained higher education (diversity jurisdiction) and during the pen- there are enough bi-national same-sex cou- in the U.S., inquiring about what could be dency of the suit sought to raise Title VII ples for this to have emerged as a real issue. done under existing law to protect these claims as well, which were barred for failure A foreign national comes to the U.S. on a individuals in the absence of legislative ac- to have filed a complaint with the EEOC. student visa, temporary work visa or tourist tion. He claimed that the company discriminat- visa and while here becomes involved in a Napolitano’s letter stresses that the ad- ed against him based on his religious beliefs serious same-sex relationship. In some cas- ministration has been shifting enforcement by wrongly terminating him and adopting es, this leads to registration as a civil union priorities to concentrate on deporting un- policies that were more favorable to non- or domestic partner or a marriage under the documented foreign nationals who were born-again Christians. law of a jurisdiction that provides same-sex involved in criminal activity, and the pro- Applying the test adopted by the Su- marriage. portion of such cases has increased sharply preme Court under Title VII (and followed Normally, when a foreign national mar- on the deportation case docket. The letter by N.J. courts in construing their state’s ries an American citizen, the American cit- now says that Director Morton’s memo is anti-discrimination law), Judge Chesler izen is able to sponsor them for permanent “being implemented to ensure that resourc- determined that in order to plead a prima residency in the United States, eventually es are uniformly focused on our highest facie case of religious discrimination, Mill- leading to citizenship. However, the law as priorities.” Instead of merely being a policy er would have to present evidence support- written does not extend this right to non- expression for the guidance of regional of- ing the allegation that “others not within marital couples, and under the Defense of fices in targeting enforcement actions, the the protected class did not suffer similar Marriage Act same-sex couples who marry memo will be the basis for a concerted ef- adverse employment actions.” “Defendant do not obtain any legal status for their rela- fort to coordinate what is going on around has met its burden at summary judgment tionship as a matter of federal law. As more the country and, on a case-by-case basis, to by pointing to the absence of evidence to and more jurisdictions are providing a rec- grant relief. support the fourth requirement for a reli- ognized legal status for same-sex couples Wrote Napolitano: “Together with the gious discrimination claim,” wrote Chesler, (in a matter of weeks this summer, New Department of Justice (DOJ), we have “that similarly situated people not in his York enacted a Marriage Equality Act and initiated an interagency working group to protected class were treated better than Rhode Island enacted a Civil Union Act, execute a case-by-case review of all indi- him.” Although Miller made “conclusory amidst serious discussion about legislative viduals currently in removal proceedings statements” that such was the case, he did activity on same-sex marriage next year in to ensure that they constitute our highest not offer any examples, and thus his “un- Maryland, new litigation seeking same- priorities. The working group will also ini- supported contentions are insufficient to sex marriage in New Jersey, the first stage tiate a case-by-case review to ensure that defeat a motion for summary judgment.” of an effort to re-enact same-sex marriage new cases placed in removal proceedings Furthermore, Chesler found, Miller had in Maine by petitioning for a ballot ques- similarly meet such priorities. In addition, not come forward with any evidence “that tion, and perhaps the litigation end-game the working group will issue guidance on would negate or even cast doubt on Pfizer’s in the struggle to strike down Prop 8 and how to provide for appropriate discretion- legitimate and non-discriminatory reason restore the right to same-sex marriage in ary consideration to be given to compelling for terminating his employment.” In an California), the issue whether bi-national cases involving a final order of removal. employment discrimination case, the em- same-sex couples can stay together in the Finally, we will work to ensure that the re- ployer can rebut any inference of discrimi- U.S. has become much more visible. sources saved as a result of the efficiencies nation raised by the prima facie case by ar- After several intimations over the past generated through this process are dedi- ticulating a non-discriminatory reason for few months that the Obama Administra- cated to enhancing the identification and its action. In this case, Miller’s violation of tion was inching towards an administrative removal of aliens who pose a threat to pub- the company’s Business Conduct and Ha- solution to the problem, most prominently lic safety.” rassment Polices was proffered as the rea- including a June 17, 2011, memorandum by Napolitano cautioned that the new ap- son for his discharge. The court found that Director John Morton of the U.S. Immi- proach “will not provide categorical relief Miller failed to provide any evidence that gration and Customs Enforcement (ICE) for any group,” but instead will involve a would permit a jury to believe that Pfizer’s agency on priorities in focusing enforce- case-by-case review to determine whether articulated reason was pretextual. A.S.L. ment activities, the administration finally it serves enforcement priorities to deport LESBIAN/GAY LAW NOTES September 2011 183 particular individuals. What Napolitano tion to Venezuela, and Manuel Guerra, fac- pervisor never directly solicited Galeski for did not say in the letter, but what a spokes- ing deportation to Mexico. A.S.L. sex or subjected him to unwanted touching, person said in a nationwide press briefing and that the incidents were isolated and after the letter was released, was that one Federal Civil sporadic over a two year period. As such, priority under immigration law is to keep they did not adversely affect Galeski’s terms families together, and that pursuant to Litigation Notes and conditions of employment. While the Morton’s June 17 memo, the administration court found that Galeski satisfied several is taking the position that same-sex couples Eighth Circuit – A unanimous 8th Cir- prongs of the test for a retaliation claim, can constitute a family for this purpose. cuit panel ruled in Lopez-Amador v. Holder, having been the target of various disciplin- Avoiding the effect of DOMA means that 2011 WL 3557854 (Aug. 15, 2011), that a ary actions in addition to discharge within they must avoid making some categorical Venezuelan lesbian applicant was not en- close temporal proximity to his harassment rule of recognizing same-sex marriages and titled to asylum or withholding of removal complaints, nonetheless the court found other legal statuses, such as registered civil based on her sexual orientation or political that Galeski’s admitted violation of work union or domestic partners, as this would views. The petitioner, who lost before the rules made it impossible for him to meet likely provoke a lawsuit from the usual an- Immigration Judge and the Board of Im- the fourth prong, which would require him ti-gay sources. What they can do within migration Appeals, relied on one incident to show that the reasons articulated by the the broad requirements of existing law, in which she and her same-sex partner city for his discharge were pretextual. Cir- which does delegate substantial discretion were harassed by a police officer in a park, cuit Judge Damon Keith wrote the opinion to the Secretary in terms of administration, together with State Department Country for the court. is to embrace the broader concept of family reports about violence against gays by un- Alaska – U.S. District Judge Ralph R. - which does not rest on legal distinctions identified perpetrators, but the court agreed Beistline ruled on June 30 that a statute of marriage, civil union, DP - and to take with the BIA and the IJ that these were not enacted by Alaska in 2010 to attempt to the view that U.S. enforcement priorities sufficient to show that she had suffered- of make the Internet safe for children was un- would not be advanced by breaking up law- ficial persecution or had a reasonable fear constitutional. American Booksellers Foun- abiding families. of likely persecution on this ground if re- dation for Free Expression v. Sullivan, 2011 This is a temporary fix because it is not moved back to Venezuela. She also argued WL 2600734 (D. Alaska). The statute was embodied in a formally adopted regulation, that she and her family were opponents similar to enactments in other states that much less a legislated statute. It is more of the Chavez regime, but in the view of had been ruled unconstitutional, making like an announcement of an approach for the court she did not prove that she would the decision easy for Judge Beistline, who interpretation and the exercise of discre- be individually targeted for persecution asserted: “The government may not reduce tion. It doesn’t really create an enforceable on that account. Shortly before she came the adult population to only what is fit right of any kind, and like all administra- to the U.S. on a tourist visa in 2002, she for children.” He found the statute easily tively adopted policies, it will only continue had been at a political rally during which distinguishable from an Ohio statute that in effect after the next presidential election government forces had fired on the crowd, had been upheld, as that one applied only if whichever administration is in place be- but she was not injured and there was no to “personally directed communication be- ginning January 21, 2013, wants to contin- evidence she was singled out, either then tween an adult and a person that the adult ue it. For now it appears likely to provide or during the routine police checkpoints knows or should know is a minor,” whereas welcome relief to numerous bi-national she encountered afterwards. There was no the Alaska law applied to any communica- same-sex couples. Inclusion of this protec- evidence her mother and other relatives left tion on the internet that might be deemed tion as part of an immigration reform stat- behind in Venezuela had encountered per- “harmful” to a minor who might be able to ute would need to remain a priority in or- secution due to their political views. access it, regardless whether the individual der to “lock in” this protection to the extent Sixth Circuit – A 6th Circuit panel ruled or entity that placed the communication possible for the long term. Striking down on August 9 that a man discharged by the on-line knew the ages of recipients. Com- DOMA, ironically, while helping same-sex City of Dearborn Recreation Department mented Judge Beistline: “There are no rea- couples who are married and thus could after he filed a series of sexual harassment sonable technological means that enable claim equal rights under existing statutory complaints against his male supervisor had a speaker on the Internet to ascertain the law, would not necessarily help civil unions not alleged sufficiently severe or pervasive actual age of persons who access their com- or domestic partnerships or cohabiting harassment to state a sex discrimination munications.” same-sex couples who have not sought a claim under Title VII of the Civil Rights California - U.S. District Judge Clau- legal status, so the issue may remain alive Act of 1964, and that the man’s long dis- dia Wilken (N.D.Cal.) issued an order July even if current litigation ends up invalidat- ciplinary record negated his claim that his 15 certifying the requested plaintiff class in ing DOMA. discharge was in retaliation for filing the Dragovich v. United States Department of the The new policy seemed immediately harassment complaints. Galeski v. City of Treasury, NO. C 10-01564 CW. The ac- effective as several cases were quickly- re Dearborn, 2011 WL 3568888 (not officially tion challenges the refusal of the Califor- solved to allow foreign national partners of published). Galeski alleged that his male nia Public Employees’ Retirement System gay U.S. citizens to remain in the country. supervisor had flirted, complimented him to allow state employees to enroll their Those receiving media attention included on his hair, and made some inappropriate same-sex domestic partners or spouses for Alex Benshimol, who was facing deporta- comments, but the court found that the su- long-term care coverage routinely available 184 September 2011 LESBIAN/GAY LAW NOTES to the different-sex spouses of public em- determined that Section 3 of DOMA is ponents blocking the televising, but Judge ployees in the state. CalPERS has resisted unconstitutional, the executive branch is Walker had the trial videotaped for his own extending access to the program for tax rea- continuing to enforce it until that judg- use. After he retired, Judge Walker used sons, having been advised by the U.S. Trea- ment is confirmed in a definitive court rul- selected clips from the videotape to illus- sury (lead defendant in the case) that due to ing. Although the director of Immigration trate some lectures he was giving, leading Section 3 of the Defense of Marriage Act Control and Enforcement issued a memo- the Proponents to seek an order that he re- (DOMA), CalPERS would lose its favored randum in June directing agents to make turn the videotape to the court and that its status as a qualified plan under Tax Code enforcement decisions in light of priorities public exhibition be prohibited. The plain- Section 7702(B) if access were extended to for removing criminals in line with national tiffs, on the other hand, sought to have the plaintiffs. Earlier this year Judge Wilken security and public safety concerns, and to videotape made freely available, pointing denied the government’s motion to dismiss take various humanitarian factors into ac- out that the transcript of the trial was avail- the original complaint, and has opined count, nonetheless the Service found no able, had been treated to a dramatic pre- that there is no need for the defendants to reason to use such discretion to allow Makk sentation on youtube.com, and was about file a separate answer to the first amended to remain in the United States. U.S. Rep. to be presented publicly in live theatrical complaint. “Without conceding argu- Nancy Pelosi has contact immigration of- presentations with prominent actors. Judge ments presented in their motion to dismiss ficial on behalf of Makk and Wells, and her Ware indicated at the end of the August 29 Plaintiff ’s First Amended Complaint,” she spokesperson indicated that she “will be hearing that he would rule promptly on the wrote, “Federal Defendants stated that they working to exhaust all appropriate immi- various motions concerning the videotapes. did not oppose the motion to certify the gration remedies that are open to pursue. Connecticut – On August 15, coun- class,” which includes “Present and future After deportation proceedings begin, it is sel for the House of Representatives filed CalPERS members who are in legally rec- possible for a “private bill” by a member their response to the motion for summary ognized same-sex marriages and registered of Congress to provide a mechanism for judgment in Pederson v. Office of Person- domestic partnerships together with their overriding enforcement in a particular case, nel Management, Case No. 3:10-cv-01750 spouses and partners, who as couples and but in light of the balance of power in the (VLB), pending in the U.S. District Court families are denied access to the CalPERS House of Representatives, it is uncertain in Connecticut. At the same time, counsel Long-Term Care Program on the same ba- that this method will be available. SFGate. for the House filed a separate motion to sis as similarly situated present and future com, Aug. 9. However, the subsequent an- dismiss the action. Gay & Lesbian Advo- CalPERS members who are in opposite- nouncement by Secretary of Homeland Se- cates & Defenders (GLAD) represents the sex marriages, and their spouses.” Because curity Janet Napolitano about case-by-case plaintiffs, six married same-sex couples and the Department of Justice will no longer review of deportation decisions to, among one widower from the states of Connecti- defend Section 3 of DOMA against con- other things, avoid breaking up families, cut, New Hampshire and Vermont, who are stitutional challenges, the Bipartisan Legal suggests there may still be hope for Makk. challenging the denial of various specified Advisory Group of the House of Represen- California – In the ongoing and seem- federal rights and benefits to them due to tatives is an Intervenor-Defendant in the ingly never ending saga of Perry v. Schwar- Section 3 of the Defense of Marriage Act, case. The sheer size of the class makes this zenegger, now known as Perry v. Brown, which precludes federal agencies and pro- a big-ticket DOMA challenge. U.S. District Judge James Ware heard oral grams from recognizing same-sex marriag- California – The U.S. Citizenship and argument on August 29 on a motion by the es for any purpose. GLAD’s response to the Immigration Service denied an application plaintiffs to allow the video recording of motion to dismiss is due on September 14. by Anthony John Makk, a citizen of Austra- the trial to be made public. The original The case is pending before District Judge lia who has a valid California marriage with trial judge, now-retired, Vaughan Walker, Vanessa L. Bryant, who was appointed to U.S. citizen Bradford Wells, to be consid- had ruled with permission from the 9th the court in 2007 by President George W. ered for permanent residency in the United Circuit that the trial proceedings could be Bush. GLAD’s co-counsel on the case are States as a spouse of a U.S. citizen. Citing broadcast live on a closed-circuit transmis- Jenner & Block LLP (Washington, D.C.), the Defense of Marriage Act, Section 3, the sion to several federal courthouses around Horton, Shields & Knox (Hartford), and Service took the position in a decision is- the country, in light of the intense national Sullivan & Worcester LLP (Boston). Co- sued July 26 that it could not recognize the interest in the case, which concerned the lead attorney Mary L. Bonauto of GLAD spousal relationship between the two men, constitutionality of Proposition 8, a Cali- stated, “We see no new arguments in this who have lived together for 19 years. Makk fornia initiative amendment that placed a brief that can possibly justify DOMA’s is the primary caregiver for Wells, who is different-sex-only definition of marriage discrimination against married same-sex living with HIV. The July 26 ruling also in the state constitution and effectively couples. We are intent on moving this case specified that Makk must depart the Unit- displaced the California Supreme Court’s forward and ending the serious harms that ed States by August 25. Makk entered the prior ruling that same-sex couples in the our plaintiffs and other families around the U.S. legally and has remained lawfully un- state were constitutionally entitled to mar- country are enduring because of DOMA.” der a series of visa extensions based on his ry. The defenders of Proposition 8 objected GLAD also represents plaintiffs in Gill business interests in the United States, but to televising the trial, suggesting that their v. Office of Personnel Management, 699 had applied for permanent residency as his expert witnesses would be intimidated and F.Supp.2d 374 (D. Mass. 2010), pending visa authorization was expiring. Although refuse to testify. The U.S. Supreme Court in the 1st Circuit, in which U.S. District the president and the attorney general have issued an order at the request of the Pro- Judge Joseph L. Tauro ruled last summer LESBIAN/GAY LAW NOTES September 2011 185 that Section 3 is unconstitutional. Counsel there was no response from the organiza- including possible entitlement to funding, for the House has also intervened in Gill tional defendants, so Judge Robert Holmes without having to modify its membership to defend Section 3, while the Justice De- Bell declared the organizations in default policies. The University also undertakes to partment now maintains that Judge Tauro’s and issued an order permanently enjoin- commit the Student Bar Association to a holding is correct. ing them from conducting protests on viewpoint neutral approach to its decisions Florida – The ACLU of Florida has the plaintiff ’s property and indeed on any on funding activities and organizations. Of reached a settlement in its suit on behalf church property in the U.S. The injunc- course, Alliance Defense Fund represented of a gay man who was arrested by Miami tion also extends to impeding access or CLS-UM in the lawsuit and negotiating police after phoning in a 911 call upon destroying property. The named defen- the settlement. ADF Press Release, Au- observing undercover police officers beat- dants agreed to a consent order granting a gust 10. ing a gay man in South Beach. Accord- permanent injunction against them as well, New York & California – New York ing to plaintiff Harold Strickland, the of- and also ordering various individual de- Attorney General Eric T. Schneiderman ficers spotted him making the 911 call, fendants to pay damages for their actions. has filed an amicus brief in the- pend approached him, took his cell phone, and Mount Hope Church v. Bash Back!, Case No. ing case of Windsor v. United States, No. arrested him false charges of loitering and 1:09-CV-427 (W.D.Mich., orders entered 1:10-cv-8435-BSJ-JCF (S.D.N.Y.), in prowling, taunting him with anti-gay epi- July 11, 2011). which plaintiff Edith Windsor is suing for thets while transporting him in handcuffs Minnesota – Minnesota’s Campaign a refund of the estate taxes paid upon the to the police station, and telling him that Finance and Public Disclosure Board is- death of her spouse on the ground that she he could be made to disappear. ACLU of sued two opinions on August 16 finding should have been entitled to the marital de- Florida sued on Strickland’s behalf in U.S. that neither the Minnesota Family Council duction, since they were married in Canada District Court for the Southern District of nor the National Organization for Mar- and New York recognizes the marriage. Florida, asserting that Miami Police have riage had violated state law requiring re- The Internal Revenue Service assessed the engaged in harassment of gay men on the porting of lobbying expenses, even though tax relying on the Defense of Marriage Act beach and have a practice of retaliating the organizations had apparently collabo- (DOMA), Section 3, which bars the fed- against individuals such as Strickland who rated on running television advertisements eral government from recognizing same- report police misconduct. Under the terms aimed at advancing the goal of enacting an sex marriages for purposes of federal law. of the settlement, the City of Miami Beach anti-marriage constitutional amendment in Schneiderman’s amicus brief argues, in line will pay Strickland $75,000 (including Minnesota and using the issue of same-sex with the plaintiff ’s main brief, that Sec- damages and attorney fees) and will enact marriage to oppose liberal political candi- tion 3 of DOMA unconstitutionally dis- new policies regarding reporting of police dates in the state. The Board determined criminates against gay people by refusing misconduct, as well as training of police that the expenditures did not involve legis- to recognize their marriages and imposing officers to avoid harassment at Flamingo lative lobbying, as that concept is contained unequal treatment based on sexual orienta- Park where this incident occurred. ACLU in the Minnesota law, so no reporting was tion and sex. Ironically, in light of a DOJ of Florida LGBT Rights Attorney Shelbi required. The Board ordered the cases dis- amicus filing in a West Coast case,Golinski Day worked on the case. ACLU Press Advi- missed. v. Office of Personnel Management, it seems sory, Aug. 1. The Miami Herald previously Montana – Christian Legal Society Chap- likely that the Justice Department will be reported on July 25 that City Manager ter at University of Montana School of Law v. filing a similar brief in this case. (Prepara- Jorge Gonzalez announced that the two Eck has been settled. CLS was suing for tion to file a motion to dismiss or answer police officers involved in the case, Frankly official recognition, which had been denied in this case led the Justice Department to Forte and Eliut Hazzi, would be dismissed, by the law school on the ground that CLS’s study the issue anew and recommend to the although they would have a right to hear- restrictive membership policy violates the President that DOJ not defend Section 3.) ing on the dismissal. school’s anti-discrimination policy. The The statute is being defended in both cases Michigan – On November 9, 2008, sev- U.S. District Court had ruled against the by an Intervenor, the House Bipartisan Le- eral activists disrupted a service at Mount plaintiffs, who had filed an appeal with the gal Advisory Group (BLAG), represented Hope Church in Lansing to protest the 9th Circuit. The appeal will be withdrawn by former Solicitor General Paul Clement. church’s anti-gay advocacy. The church as a result of a settlement agreement signed Clement filed a brief inGolinski in response filed suit in U.S. District Court naming by the defendants on August 3. Under the to the DOJ brief, arguing that DOJ’s argu- several individuals and two organizational terms of the settlement, CLS-UM will be ment for heightened scrutiny of an equal defendants, Bash Back! And Bash Back! treated as an “Independent Student Orga- protection claim is improperly made at Lansing, claiming violations of 18 U.S.C. nization” and will enjoy the right to meet the district court level, because the court is sec. 248 and common law trespass. After on campus and use campus channels of bound by old circuit precedents that pre- the attorney originally representing defen- communication. It is not clear from the date the Supreme Court’s rulings in Romer dants withdrew from the case, the court text of the settlement agreement what all v. Evans and Lawrence v. Texas, and that ordered defendants, now representing the distinctions are between an ISO and have never been overruled or disavowed by themselves, to provide contact information an officially recognized student organiza- the 9th Circuit in the context of an equal to the church’s counsel by a certain date tions, but from the details of the settlement protection challenge. He also argued that or risk default. All the individual defen- agreement it looks as if CLS-UM will en- sexual orientation claims should not be sub- dants complied with the court’s order, but joy something close to virtual recognition, jected to heightened scrutiny, contending 186 September 2011 LESBIAN/GAY LAW NOTES that the tests used by the Supreme Court fore she died to execute a form designating of the named defendants. After hearing to determine whether heightened scru- them as beneficiaries on her profit sharing oral argument in December, the 9th Cir- tiny should apply are not met in the case account, standing at a bit over $40,000. cuit decided that before it could determine of sexual orientation. Clement contended After Farley died and the designation form whether Proponents had standing, it need- that gays are not a politically powerless came to light, Tobits protested that a mar- ed a definitive answer from the California group, noting passage of the Hate Crimes ried person could not execute such a desig- Supreme Court as to whether Proponents Law and the DADT Repeal Act, and the nation with the permission of her spouse. had standing as a matter of state law. The Obama Administration’s changed direc- The parents argued that because the profit- California Supreme Court accepted the tion on defending DOMA. As a result, he sharing plan was governed by the federal certified question and set a briefing sched- argued, politically powerful gay people do Employee Retirement Income Security Act ule, and has now scheduled oral argument. not need the assistance of heightened judi- (ERISA), Tobits could not be recognized as The constitutional amendment enacted by cial scrutiny, but can resort to the political a spouse for purposes of the plan, and the Proposition 8 remains in effect due to a stay process to secure the repeal of statutes that firm, as a fiduciary, would not pay out the of Judge Walker’s decision issued by the 9th they find contrary to their interests. Dur- money unless a court would determine who Circuit panel. ing August, the Obama Administration is entitled to get it. The parents claim that Illinois – Sangamon County Circuit took the next step in this process by filing Farley checked off a box on the form in- Judge John Schmidt ruled on August 18 an brief supporting Edith Windsor’s mo- dicating she was single, and thus did not that Catholic Charities, which have oper- tion for summary judgment, arguing that consider herself to be married, but there ated foster care and adoption agencies by DOMA Section 3 is unconstitutional, that is some controversy about whether Farley contract with the state of Illinois, were not Windsor’s marriage should be recognized, was under “undue influence” at the time, entitled to have their contracts renewed. and thus that she is entitled to judgment whether Farley actually signed the form, After Illinois enacted a civil union law that ordering the return of the estate tax she was and whether Tobits ever executed a relevant was to take effect in June, the issue arose required to pay. Also, on Aug. 22, counsel form concerning the plan. Settlement talks whether it was appropriate for the state to for Windsor filed with the court an affida- have resulted in several extensions of liti- continue contracting with Catholic Chari- vit by Lisa M. Diamond, a professor who gation deadlines, and meanwhile the case ties to provide these services, since they asserted under oath that the brief filed by won national legal media attention. This would not deal with same-sex couples as Clement in defense of DOMA Section 3, account is based on articles that appeared potential foster or adoptive parents. Af- which cited her research findings on the on law.com and in the Philadelphia Daily ter ascertaining that the agencies operated nature of same-sex sexuality, had miscon- News on August 3. A.S.L. by Catholic Charities would continue to strued and distorted her research findings, take that position, the state made it known which, affirmed Diamond, “do not support State Civil Litigation that it would remove children from those the propositions for which BLAG cites agencies and transfer them to agencies that them.” Clement sought to argue that sexual Notes would treat gay couples without discrimi- orientation could not be characterized as an nation, allowing Catholic Charities’ con- “immutable characteristic” for purposes of California – The California Supreme Court tracts to lapse. Catholic Charities filed suit, analyzing the level of judicial scrutiny for set oral argument in Perry v. Brown for Sep- asserting some sort of right to have their an equal protection challenge to the law. tember 6, the first day of its fall term. This contracts renewed, for which the court Diamond pointed out that her research is the certified question from the 9th Circuit found no basis in law. “Plaintiffs do not went not to the issue of sexual orientation of whether the Proponents of Proposition 8 have a legally recognized protected prop- as such but rather to the issue of how in- have standing as a matter of California law erty interest in the renewal of its contracts dividuals experience their sexual attractions to defend the constitutionality of Prop 8 in for foster care and adoption services,” wrote and thus label themselves with respect to a federal constitutional challenge. The Pro- Judge Schmidt. “Plaintiffs are not required sexuality. Diamond points out in her affi- ponents were granted Intervenor-Defen- by the State to perform these useful and davit that the BLAG brief takes quotations dant standing by District Judge Vaughan beneficial services. There are no statutory out of context in her published work, thus Walker so that a defense could be mounted terms creating a property interest in the misrepresenting their meaning. in the trial court, inasmuch as none of the Plaintiffs’ contracts. Thus, the Plaintiffs’ Pennsylvania – In Cozen O’Connor v. original named defendants were willing to contract with the State, which is renew- Tobis, now pending in the Eastern Dis- defend the constitutionality of the initiative able annually, is a desire of the Plaintiffs to trict of Pennsylvania, the law firm Cozen amendment to the California Constitution perform their mission as directed by their O’Connor seeks a declaration about how to limiting marriage in California to the union religious beliefs. The fact that the Plaintiffs dispose of money in a profit sharing plan of one man and one woman. After Judge have contracted with the State to provide in the account of a deceased partner, Sarah Walker struck down Prop 8 as violating the foster care and adoption services for over Ellyn Farley, who was married in Canada 14th Amendment, and none of the named forty years does not vest the Plaintiffs with to Jennifer Tobits. Farley was estranged defendants signified any interest in appeal- a protected property interest... No citizen from her parents, but when she fell fatally ing, the Proponents filed an appeal, and the has a recognized legal right to a contract ill, Tobits summoned the parents, who al- threshold question on appeal is whether with the government.” The court dissolved legedly did the old “move in and take over they have standing to bring an appeal on a preliminary injunction which it had issue routine,” persuading Farley on the day be- their own without the participation of any to maintain the status quo pending deter- LESBIAN/GAY LAW NOTES September 2011 187 mination of cross-motions for summary back yard. They indicated that they gave up N.W.2d 516 (1987), the Supreme Court, judgment, and granted summary judg- trying to book an event after being turned in the subsequent case of Van v. Zahorik, ment in favor of the State and against the down by two establishments and failing to 597 N.W.2d 15 (1999), gave the doctrine plaintiffs. The court noted that since it had find a mutually agreeable date with a third a narrow construction, holding that it does found no property right at stake, there was that was willing to book the event. not extend to parties who were never mar- no need to determine the plaintiffs’ claims Indiana – The tragic stage collapse in- ried to one another. In this case, Renee that non-renewal of their contracts violated cident at the Indiana State Fair on August Harmon and Tammy Davis lived as part- the Illinois Human Rights Act, the Illinois 13 had many victims. One among the dead ners for 19 years, during which Davis bore Religious Freedom and Protection and was Tammy Van Dam, who left a same- three children through donor insemination. Civil Union Act, or the Illinois Religious sex partner, Beth Urschel. The Wall Street Because Michigan does not allow second- Freedom Restoration Act. One suspects an Journal reported on August 23 that Urschel parent adoption, Harmon could not adopt appeal is in the works. Catholic Charities had filed a wrongful death action in Indi- the children. After the relationship ended, v. State of Illinois, No. 2011-MR-254 (7th ana against the state and several corpora- they had some sort of parenting agreement Judicial Circuit, Aug. 18, 2011). tions associated with the event. TheJournal under which Harmon continued to see Illinois – Cook County Circuit Judge article reported that the women were mar- the children for a time, but eventually that Michael Heyman has ordered that the state ried in Hawaii and that the case would be broke down, and Harmon sued for cus- issue corrected birth certificates to Laruen a test of whether Indiana would recognize tody and visitation rights. The trial court, Grey, Victor Williams, and Nicholas Gua- same-sex marriages. That struck this reader while rejecting the argument that Harmon rino, co-plaintiffs in a lawsuit brought by as absurd. Hawaii does not have same-sex could establish third-party standing to seek the ACLU of Illinois contesting the refusal marriages. They recently enacted a Civil custody, opined that she might be able to of the state to issue new certificates show- Union Act, but were the first state to enact have standing based on her past assump- ing the preferred gender of transgender in- a legal status open to same-sex couples, re- tion of parental duties, and set a hearing. dividuals in the absence of proof of surgical ciprocal beneficiaries, which might be the Davis appealed, and won a reversal from alteration of their bodies to the preferred status upon which Urschel is basing her the court of appeals, holding that there gender. After the suit was filed in May, the claim. Reciprocal beneficiaries under Ha- was no available legal theory under which state argued that the lawsuit was unnec- waii law have the right to sue for wrongful Harmon could establish standing to seek essary because a new rule that would not death. So the issue in the case may actually custody. Harmon sought to attack this rul- require proof of surgery was in the works. be whether an Indiana court would treat ing on constitutional as well as interpretive The judge order issuance of the new cer- Urschel as a “widow” for purposes of the grounds. In dissenting from the Supreme tificates as an earnest of good faith by the state’s Wrongful Death Act under the doc- Court’s denial of review, Justice Marilyn state pending implementation of the new trine of comity. Since reciprocal benefi- Kelly wrote that the case “involves issues rule. The state’s compliance would appar- cary status is not marriage or even like it, of great jurisprudential significance.” After ently end the plaintiffs’ standing to contest as reciprocal beneficiaries enjoy a rather briefly describing the case and the legal is- the existing rule. John Knight, director of short list of enumerated legal rights, the sues, she concluded, “Plaintiff ’s application the ACLU of Illinois LGBT Project, who federal Defense of Marriage Act and In- raises significant constitutional questions represents the plaintiffs, said in a press re- diana’s own mini-DOMA (IC 31-11-1-1) that this Court has not yet considered. lease that while ACLU was happy for their would appear to be irrelevant to this issue, Courts across the country are grappling clients, it still sought some kind of written unless a court were to decide that the mini- with similar issues. Their jurisprudential resolution of the case to make certain an DOMA automatically limits the meaning significance is underscored by the fact that appropriate new rule would be implement- of the term “widow” as used in the Wrong- the ACLU Fund of Michigan and Fam- ed, pointing out that the state has given ful Death Act, which provides that the pro- ily Watch International have already filed assurances of a change in the past without ceeds of a wrongful death suit brought by briefs amicus curiae. Yet the majority today following through. Advocate, July 20. the personal representative of the deceased declines to consider plaintiff ’s arguments Illinois – The website stltoday.com re- shall be for the exclusive benefit of the wid- and lets stand a peremptory order from ported on Aug. 15 that the Illinois De- ow or widower. It will be interesting to see the Court of Appeals that does not address partment of Human Rights has found how this turns out. plaintiff ’s constitutional claims. This case “substantial evidence” that two bed and Michigan – With three justices dissent- cries out for a ruling by the state’s highest breakfast inns that refused to host civil ing, the Michigan Supreme Court refused court.” union ceremonies for a gay male couple af- to grant review in Harmon v. Davis, 2011 New York – Opponents of marriage ter the Illinois Civil Union Act went into WL 2978041 ( July 22, 2011), in which the equality in New York filed a lawsuit in effect on June 1 violated the state’s human Court of Appeals held (in an unpublished Livingston County Supreme Court on rights law. The allegation is that both facil- opinion) that a co-parent had no stand- July 25, seeking nullification of the Mar- ities, when contacted in February to sched- ing to seek custody of the children she riage Equality Law that had been enacted ule the blessed event in June, indicated had been raising together with her former by the legislature on June 24, based on they only hosted marriage ceremonies for partner, the children’s biological mother. the theories that various private meetings different-sex couples. The complainants, Although the Michigan Court of Appeals held prior to enactment violated the state’s Todd and Mark Wathen of Mattoon, IL, has recognized the concept of equitable Open Meetings Law, and that the Message instead had the ceremony on June 6 in their parenthood, in Atkinson v. Atkinson, 408 of Necessity issued by Governor Andrew 188 September 2011 LESBIAN/GAY LAW NOTES

Cuomo so that he measure could be voted Pennsylvania – Lambda Legal has an- Overruling the trial court, the court of ap- upon on June 24 was invalid. New York- nounced the settlement of a discrimination peals found that the husband’s internet and ers for Constitutional Freedoms v. New York claim it filed with the Philadelphia Com- related activities reflected on his “compara- State Senate. The plaintiffs are represented mission on Human Relations against the tive fitness” as a parent, and ordered that by Liberty Counsel, a right-wing litigation city’s Department of Human Services and the wife be given primary residential child group based on Lynchburg, Virginia, the the Youth Study Center. The suit was filed custody, reducing the husband’s contact home of the late Rev. Jerry Falwell’s Liberty on behalf of a transgender teen who had time with the children, and shifting from University, with Joseph P. Miller of Cuba, been remanded to DHS by a Family Court husband to wife the right to the final say New York, on the complaint as local coun- Judge to provide her with all appropriate on educational and health decisions in the sel. The complaint makes the odd argu- medical treatment for Gender Identity case of disagreement between them. In- ment that dinner meetings held in the Ex- Disorder. According to the allegations of terestingly, however, in light of the court’s ecutive Mansion by Governor Cuomo with the discrimination charge, the staff failed concern about the husband’s activities, the Republican Senators at which the gover- to treat the teen in accord with her gen- opinion by Judge Charles D. Susano, Jr., nor sought support for the bill are “public der identity, instead referring to her by her does not place any specific restrictions on meetings,” that meetings of the Senate Re- previous male name and using male pro- the husband’s activities when the children publican Caucus from which press and lob- nouns, refusing her access to clothing and are staying with him, which includes sev- byists were excluded were “public meetings” grooming materials necessary for her to live eral weekends a month. because the Republican Caucus constitutes in her preferred gender, and subjecting her Texas – In an action that local domestic a quorum of the Senate, and that closure to verbal harassment. Under the terms of relations lawyers considered to be unprec- of certain corridors in the capitol building the settlement, the Department will revise edented, a Houston judge has imposed an that made it difficult for lobbyists to accost policies and train staff, and will promise to order that a gay man not leave his children Senators during the final days of the process accord gender-appropriate treatment to alone with any man to whom they aren’t re- also violated the Open Meeting law – as if transgender individuals using the agency’s lated by blood or adoption. This would in- the anti-marriage equality lobbyists did not services. Lambda staff attorney Flor Ber- clude the man’s husband. William Flowers have means to communicate with Republi- mudez is handling the case, which was filed and his wife divorced in 2004, agreeing that can senators during that period. The state as L.P. v. Philadelphia. their three children would live with her. constitution provides that a printed version Tennessee – In K.B.J. v. T.J., No. E2010- William Flowers recently filed for custody of proposed legislation in its final form 01157-COA-R3-CV (Ct. App. Tenn., in Harris County. A jury ruled that Flow- must be in the hands of legislators at least Knoxville, Aug. 26, 2011), the Tennessee ers’ ex-wife should retain custody, but his three days prior to a floor vote, unless the Court of Appeals rejected a trial court’s regular visitation rights should continue. governor certifies in writing and under “the decision to award primary residential child Flowers and his partner, Jim Evans, mar- seal of the state, the facts which in his or custody to the husband in a divorce action, ried in Connecticut last year and live to- her opinion necessitate an immediate vote finding that the trial judge gave inadequate gether. Following the trial, Harris County thereon.” In this case, the bill had been in weight to evidence “that Husband had an Associate Judge Charley E. Prine, Jr., issued the hands of legislators for several months, uncontrolled problem with internet por- a ruling that would, in effect, ban Flowers but last minute amendments negotiated by nography and with extramarital relation- from leaving his children in the care of his representatives of the governor and a hand- ships initiated through the internet, all of husband at any time. Indeed, it would also ful of Senate Republicans were not distrib- which he tried to falsely deny or portray prohibit Flowers from leaving the chil- uted in their final form until June 24, the as innocent.” The court pointed out that dren with a male doctor, teacher, or pastor. date of the vote. The governor made the despite the husband’s denials of various While restrictive orders are sometimes im- written certification, the vote took place, details alleged by the wife, “Husband ad- posed in cases involving evidence of abuse, and the bill was signed into law that night. mitted visiting gay pornographic web sites there was no such evidence introduced in It seems unlikey that an action confided to and even admitted numerous private meet- this case, and Flowers’ ex-wife did not seek the government to act based on his “opin- ings with another male named Ron during this restriction. Houston Chronicle, July 24. ion” would be subject to judicial review. It which, according to him, the two of them Vermont – The ACLU of Vermont rep- is also ironic that opponents of marriage watched pornography and masturbated but resents Katherine Baker and Ming-Lien equality would go to court to stop a bill en- did not touch each other.” Husband also Linsley in their suit against The Wildflower acted by a legislature from going into effect, admitted meeting with a woman he met Inn, a Vermont bed and breakfast that re- inasmuch as opponents of marriage equality through an adult dating site, and setting fused to book a wedding reception for the are most critical about same-sex marriage up a meeting with a mixed-sex couple for a couple. Baker v. Wildflower Inn, Civ. Div. litigation, decrying it as undemocratic. On possible sexual rendezvous, but then chick- Docket No. 187-7-11 CACV (Vt. Super. the other hand, one must acknowledge that ening out at the last minute. There were Ct., Caledonia Unit). In its answer to the the anti-marriage equality groups generally allegations that the husband also created complaint of discrimination under Ver- argue that the question whether same-sex profiles for himself on gay web sites. The mont’s public accommodations law, the Inn couples should be allowed to marry should wife claims she confronted him about these asserts that the individual who rejected the be decided by referendum, a process in things many times, but his promises to stop booking was not authorized to do so, but which their propaganda machine would be were never fulfilled, so eventually she began also argues that the owners of the Inn have at its most effective. withholding sex, and he filed for divorce. a Vermont and U.S. constitutional right LESBIAN/GAY LAW NOTES September 2011 189 of free exercise of religion and freedom of Circuit to block the vindictive prosecution votes on bills that are unlikely to move in speech to refuse to host “expressive events” argument, and Judge Facciola suspended the other chamber. that violate their religious beliefs. While the ongoing proceeding after three days of Federal – For the first time in its history, Vermont’s same-sex marriage law allows trial to give the government time to pursue the U.S. Senate voted on July 18 to con- religious organizations to refuse to be in- its motion, according to reporting by Chris firm an openly gay man for a position as a volved with same-sex marriages, it provides Geidner in MetroWeekly. U.S. District Judge. J. Paul Oetken, nomi- no such exemption for commercial entities Maryland – Teonna Monae Brown, 19, nated by President Obama, was confirmed operating places of public accommodation. pleaded guilty in Baltimore County Circuit by a decisive bipartisan vote of 80-13, for So the issue may be joined in this case as Court on August 4 to one count of first- a seat on the Southern District of New to whether businesses are entitled to re- degree assault and one hate crime count York bench. Oetken, a Yale law graduate fuse to provide goods and services based in the April attack on Chrissy Lee Polis, who clerked at the U.S. Supreme Court, on their owners’ religiously-based moral a transgender woman, at a McDonald’s worked in the Clinton White House, and objections to the customers, or whether it in Rosedale. The incident was captured was most recently in-house counsel at Ca- violates freedom of speech or association to on video and went viral on the internet, blevision Systems Corp., will be joining the require a place of public accommodation to drawing international attention to the case. only other openly-gay federal district court provide services on a non-discriminatory Sentencing was to be pronounced by Judge nominee to have been confirmed up to this basis regardless of the owners’ personal John Turnbull II on September 13. Pros- time, the Honorable Deborah Batts, who beliefs. A successful defense to the dis- ecutors were seeking a ten year sentence, has been serving in the Southern District crimination charge on this basis would ef- with five years suspended, out of a maxi- of New York since her appointment by fectively invalidate the operation of public mum possible sentence of 35 years, in light President Clinton in 1994. Waiting in the accommodations laws. ACLU of Vermont of the defendant’s first-offender status and wings is another openly-lesbian nominee, staff attorney Dan Barrett is representing her youth. Another girl, age 14, who par- Alison Nathan, who was approved by the the plaintiffs, who reside in Brooklyn and ticipated in attacking Polis pled guilty and Judiciary Committee on July 14. Much was sought to make these arrangements in Oc- was sentenced as a juvenile, her name with- recently made in the press about recently- tober 2010, when same-sex marriages could held by the court, and was sent to a juvenile retired U.S. District Judge Vaughan Walker, not be contracted in New York but were facility. Baltimore Sun, Aug. 5. A.S.L. who presided over the Proposition 8 trial recognized there. When they were turned in California but did not “come out” to the down by Wildflower Inn, they arranged to Legislative Notes press as gay until after stepping down from hold their reception at another facility, but the bench. National Law Journal, July 18. decided to file suit to prevent such incidents Federal – Shortly before the first scheduled California – The California legislature in the future. Their lawsuit seeks injunctive Senate hearing on S.958, the Respect for sent S.B. 117, the Equal Benefits Bill, to relief and only nominal damages. National Marriage bill on July 20, which would re- Governor Jerry Brown’s desk on August 22. Law Journal, Aug. 23. A.S.L. peal the Defense of Marriage Act (DOMA) The measure would bar the state govern- and mandate federal recognition of all law- ment from making contracts worth more Criminal Litigation Notes fully contracted state marriages (including than $100,000 with any businesses or other marriages of same-sex couples), as well as entities that deny equal benefits to same-sex Federal – Lt. Dan Choi is on trial before marriages contracted overseas that could spouses of their employees. The bill tracks U.S. Magistrate Judge John Facciola in have been contracted in a state, the White municipal ordinances in San Francisco, Los the District of Columbia on charges de- House announced that President Obama Angeles, Sacramento, Oakland, and several riving from his arrest as a participant in a was endorsing the bill. He had previously small California cities, and would apply to demonstration almost a year ago in front stated that he favored repeal of DOMA, the same-sex couples who married in Cali- of the White House to protest the “don’t but this was the first time the president fornia prior to the enactment of Proposi- ask, don’t tell” military policy. A big part had endorsed a specific bill that would not tion 8. The bill passed the Senate by a vote of Choi’s defense is the argument that he only repeal DOMA but establish same-sex of 22-13, its last legislative hurdle. BNA was engaged in a peaceful political protest marriage recognition for the federal gov- Daily Labor Report, 164 DLR A-4 (Aug. and is being subjected to vindictive pros- ernment. S. 958 was introduced by Sena- 24, 2011). * * * The California Assembly ecution because of the content of his mes- tor Feinstein (D-Calif.) on March 16, with approved S.B. 182 on Aug. 30, and sent it sage. The argument is that normally people 18 co-sponsors. By the date of the hearing, to Governor Brown, the measure having arrested in connection with peaceful politi- the number of co-sponsors had grown to passed the Senate in July. It would add cal demonstrations might be prosecuted in 27. The hearing provided national press “sexual orientation” and “gender identity” local D.C. courts on minor public disor- exposure for the issue, but the measure is to the list of optional demographic infor- der charges, but that Choi is being singled not likely to move forward in this session mation provided to the Governor’s office out for federal prosecution on more con- of the Senate, given the impossibility that as part of the judicial appointment process. sequential charges because of the content the companion House bill will receive con- The measure represents a judgment by the of the political message in his protest and sideration in the Republican-controlled majority of the legislators that ensuring an its symbolic location in front of the White chamber, and the tendency of the political increase in the number of openly LGBT House. On Aug. 31, the prosecution indi- leadership in each house to avoid subjecting judges in the state would be desirable as cated it would seek an order from the D.C. their members to politically-uncomfortable a diversity measure. Equality California’s 190 September 2011 LESBIAN/GAY LAW NOTES

Executive Director, Roland Palencia, ob- spouses. She filed a discrimination - com rule, the tribal court may issue a marriage served that out of more than 1600 judges plaint, and the Iowa Attorney General’s license to two unmarried people, regardless at all levels in California, only a handful are Office agreed with her and advised the state of sex, if they are at least 18 years old and openly LGBT. * * * The California legis- that the rule needed to be changed. Iowa at least one of them is an enrolled mem- lature has also approved A.B. 887, which is City Press-Citizen, July 22. ber of the tribe. In taking this action, the intended to enhance protection against dis- Iowa – Iowa State Senate Majority Suquamish were following in the footsteps crimination on the basis of gender identity Leader Michael Gronstal told the Associ- of the Coquille Indian Tribe in Coos Bay, and expression. Called the Gender Non- ated Press that he remains committed to Oregon, which married a same-sex couple discrimination Act, the measure passed blocking any attempt to put a proposal be- in 2009. At present, the state of Washing- the Senate 25-13 and the Assembly 54-24. fore voters to ban same-sex marriage in the ton has domestic partnerships for same-sex The state’s anti-discrimination laws had al- state through a constitutional amendment. couples but does not yet recognize same- ready covered such discrimination through As Majority Leader of the slim Democratic sex marriages. The tribal marriage is likely a definition of “gender” to include gender majority in the Senate, Gronstal essentially to be regarded as a domestic partnership by identity and expression, but this legislation controls the flow of legislation to the floor the state for legal purposes, but presum- is intended to provide greater visibility and of the chamber. The other house, -domi ably could be recognized as a marriage in certainty by adding those terms directly to nated by the Republicans, and the gover- those jurisdictions (such as nearby Canada) the list of forbidden grounds of discrimina- nor, who is a Republican, both support the where same-sex marriage is legally recog- tion in the state’s various civil rights laws, proposed amendment. Gronstal’s ability nized. Kitsap Sun (Aug. 1). A.S.L. thus following the example set by numer- to block the amendment depends upon ous California municipalities, including the Democratic Senate majority retaining Law & Society Notes San Diego, Los Angeles, San Francisco, him as speaker, and upon the re-election of Santa Cruz, Oakland, and West Holly- a Democratic majority in 2012. Associated wood. TheAdvocate.com , Sept. 1. Press, Aug. 28. Federal – The Bureau of Labor Statistics Florida – State Senator Eleanor Sobel Maryland – On July 22, Governor of the U.S. Department of Labor issued its (D-Hollywood) filed S.B. 166, a measure Martin O’Malley pledged to lead the annual report on Employee Benefits in the that would establish a domestic partnership fight for enactment of same-sex marriage United States on July 26. The report sum- registry for same-sex couples in the state of in the 2012 session of the state legisla- marizes data from employer surveys asking Florida and that would provide that regis- ture. O’Malley cited the recent enactment about benefits in effect during March 2011. tered partners have the same status as mar- of marriage equality in New York as an For the first time, BLS inquired about ried spouses for purposes of Florida law. example for Maryland to follow. “It is a whether employers provided domestic The bill will be considered during the legis- fundamental truth that with every accom- partnership benefits, and found that a sur- lative session scheduled to begin in January, plishment further accomplishments appear prisingly large percentage of employers do 2012. Sen. Sobel pointed out in her intro- possible,” said O’Malley. An unsuccessful provide such benefits. The survey looked at ductory remarks that despite opposition to marriage equality measure in the last leg- two kinds of benefits: defined benefit survi- same-sex marriage, a majority of Floridians islature had only lukewarm support from vor benefits, and health insurance benefits. now support “recognition of same-sex re- the governor, and was not listed as one of In a press release summarizing the results, lationships. So many other Floridians are his program bills. It passed the Senate but BLS stated: “For unmarried domestic part- in long-term, unmarried relationships it no failed to win sufficient support for a House ner benefits, about half the workers in state longer makes sense for the state to have just vote. Now, following the example of New and local government have access to sur- one category – married and everybody else.” York Governor Andrew Cuomo, O’Malley vivor benefits, as compared to 7 percent of Florida Together, News Release, Aug. 2011. stated that he would appoint a top legisla- the workers in private industry, reflecting Florida – Miami-Dade County schools tive aide, Joseph Bryce, to lead the effort to in part the difference in the availability of will now expressly protect gay and trans move the bill. Baltimore Sun, July 23. defined benefit plans between these groups. students from bullying or harassment un- Suquamish Tribe – A tribe of Na- Thirty-three percent of state and local gov- der an amended policy that references sex- tive Americans (American Indians) in the ernment workers and 29 percent of private ual orientation and gender identity, reports Pacific Northwest has decided to recog- sector workers have access to health care the lobbying group Save Dade. The new nize same-sex marriages. On August 1, benefits for unmarried domestic partners of policy went into effect July 22. the Suquamish Tribal Council formally the same sex. Access to benefits varies by Iowa – The Department of Administra- changed its tribal ordinance to open mar- employer and employee characteristics and tive Services has announced that state em- riage to same-sex couples. The change by whether the unmarried domestic partner ployees in same-sex marriage would qualify was instigated by tribe member Heather is of the same or opposite sex.” Although for family leave to care for a sick spouse. Purser, who lives in Seattle, Washington, many DP plans are limited to same-sex The change was sparked by a challenge to was raised in Kitsap County, and has been partners, some employers have also made the existing rules by a prison guard from working to be able to marry her same-sex the benefits available to unmarried differ- Iowa City who needed time off to care for partner in a tribal ceremony for four years. ent-sex partners who can demonstrate fi- a same-sex spouse after she was diagnosed The Tribal Council held a public hearing nancial interdependence. with ovarian cancer and was told that the on the ordinance change in June and for- Federal – President Obama issued a family leave policy did not cover same-sex mally voted on August 1. Under the new proclamation on August 4 titled “Suspen- LESBIAN/GAY LAW NOTES September 2011 191 sion of Entry as Immigrants and Nonim- eral employee partner in order for them Sibaja submitted the proposed referendum migrants of Persons Who Participate in to qualify as domestic partners under the language to the Attorney General’s office Serious Human Rights and Humanitarian various regulatory changes that have been on July 15. If 504,760 valid signatures are Law Violations and Other Abuses.” Under adopted since President Obama first issued collected and submitted by October 12, the the proclamation, President Obama sus- his directive that OPM figure out how to measure proposing that the law be repealed pends entry into the United States of any extend equal treatment to same-sex part- would be on the ballot in June 2012, during alien who “planned, ordered, assisted, aided ners of federal employees. Those interested the state’s presidential primary elections. and abetted, committed or otherwise par- in commenting on the proposed rules have The LGBT groups are launching an edu- ticipated in, including through command already missed the deadline for the one on cational campaign to persuade voters not to responsibility, widespread or systematic vi- the drug and alcohol and child care subsidy sign the referendum petitions. olence against any civilian population based programs, which expired late in August, Iowa – A scandal revealed? Documents in whole or in part on race; color; descent; but the others are open for comment until obtained by the Associated Press under the sex; disability; membership in an indig- September 26. Check the Federal Register Freedom of Information Act revealed that enous group; language, religion; political listings for details. federal grant money to the Iowa Family opinion; national origin; ethnicity; mem- Federal – Gregory J. Junemann, Presi- Policy Center, provided between 2006 and bership in a particular social group; birth; dent of the International Federation of 2010 for the purpose of providing educa- or sexual orientation or gender identity, or Professional and Technical Engineers, tion and counseling to Iowans with fam- who attempted or conspired to do so.” The AFL-CIO & CLC, which represents nu- ily problems, helped to pay salaries for five proclamation also bars entry of individuals merous federal employees, including many employees who devoted substantial time implicated in war crimes, crimes against at the National Aeronautical and Space to IFPC’s fight against same-sex marriage humanity, or other serious human rights Administration (NASA), wrote to John in the state, including efforts to deny re- violation. This is apparently the first time Berry, Director of the U.S. Office of - Per election to members of the Iowa Supreme that the federal government has taken ac- sonnel Management, to point out the fail- Court who had voted in favor of recogniz- tion to bar from the U.S. individuals (in- ure of federal agencies to live up to their ing a state constitutional right to same-sex cluding political leaders) who are complicit promise of non-discrimination based on marriage and promoting adoption of a state in advocating, directing or engaging in sexual orientation by refusing to extend constitutional amendment to override the anti-gay violence. benefits to family members of gay em- court’s opinion. The Iowa City Press-Citi- Federal – The Office of Personnel -Man ployees. “IFPTE recommends that OPM zen reported on August 26 that a Universi- agement proposed some new regulations establish a fund to compensate gay and ty of Iowa researcher who was a consultant on July 28 to further extend recognition of lesbian federal employees who can supply on the relevant federal grant also told AP domestic partners under federal personnel evidence that they have applied [for family that IFPC declined to provide services to policy. See 76 Fed. Reg. 45,204, 45,208, benefits] for their legally married spouses same-sex couples. IFPC, which changed 45,205. They are all technical and rather and been denied due to DOMA,” wrote its name to Family Leader, is also the or- small-bore, but of course potentially very Junemann in his Aug. 26 letter. “The com- ganization that has been pushing Republi- significant for partners who might benefit pensation would take the form of direct can presidential candidates to sign a pledge from them. One proposal would establish reimbursement in the amount of the dif- to oppose same-sex marriage and support “authority to make noncompetitive ap- ference between the out-of-pocket medi- a federal marriage amendment that would pointments to competitive service posi- cal and dental expenses that are incurred override state laws allowing same-sex mar- tions in the United States for certain family by same-sex spouses of federal employees, riages. The group reportedly declined to re- members of federal employees and military compared to the lesser amount that the ceiving the federal money that was due for personnel who have served overseas” for spouse would have incurred if he or she had the fifth year of the grant and is now solely same-sex domestic partners of employees, been covered [by the federal employee ben- reliant on donations to fund its activities. according to BNA’s Daily Labor Report of efits programs].” It was suggested that this Maine – Proponents of same-sex mar- August 1. Another would change regula- mechanism would be a creative response riage in Maine announced that the Sec- tions on drug and alcohol abuse programs to the inequality problem, without directly retary of State approved the language of a and child care subsidies to include domes- violating DOMA, a statute that the admin- proposed statute to be enacted by referen- tic partners and their children. A third istration now agrees is unconstitutional and dum, called “An Act to Allow Marriage Li- involves evacuation pay and allowances not defensible in court. censes for Same-Sex Couples and Protect connected with postings on a remote Pa- California – The Courage Campaign Religious Freedom.” Although the Maine cific island facility. The regulations also and Equality California and other LGBT legislature and governor enacted a same- clarify the federal regulatory definition of rights organizations in the state are band- sex marriage law several years ago, it was domestic partners. The way they have been ing together in an attempt to stop a ballot repealed by referendum before it could go trying to include domestic partners is to referendum proposed to repeal SB 48, a re- into effect. With the election of a Repub- treat them as dependent family members, cently enacted measure that is set to take ef- lican governor opposed to same-sex mar- but they are clarifying that as long as the fect in January, under which the social stud- riage, proponents determined to make a partners are financially interdependent, the ies curriculum in California public schools direct appeal to the voters to overturn the non-employee partner does not have to be must include historical treatment of the prior referendum result through the af- actually financially dependent on the fed- LGBT community. Proponent Paulo E. firmative enactment of a law that stresses 192 September 2011 LESBIAN/GAY LAW NOTES respect for religious dissenters while autho- provide ongoing training for new drivers successfully demonized ILGA because a rizing marriage for same-sex couples. Joint and refresher training periodically for all handful of its 700 affiliated organizations Press statement issued Aug. 17 by GLAD, drivers. The letters can be found on Lamb- advocated the elimination of age of consent Equality Maine, and Why Marriage Mat- da Legal’s website. laws for sex. Although ILGA promptly ex- ters Maine. New York – The New York Post reported pelled from membership any organization New York – On July 29, the New York on August 22 that New York City, having that might be construed to support legal- State Department of Taxation and Finance changed its marriage license forms to omit izing pedophile relations, it had to wage a went public with a webpage devoted to the inquiries about gender, consequently had 17 year struggle to restore its consultative Marriage Equality Act and its impact on no records showing how many same-sex status, which will allow it to attend U.N. state tax filers. The website is at the- fol couples had obtained marriage licenses or conferences and meetings, submit written lowing URL: http://www.tax.ny.ogv/pit/ married beginning July 24 when the Mar- reports and oral statements, and host pan- marriage_equality_act.htm. The most im- riage Equality Act went into effect. City els in U.N. facilities. An unofficial tally of portant general point about the guidance Clerk Michael McSweeney estimated that the vote showed 29 nations in support, 13 is that the Tax Department takes the posi- number during the period July 24-August opposed, and 6 abstaining. The U.S. sup- tion that the Marriage Equality Act’s man- 12 at about 1400, by the simple expedi- ported ILGA’s application for consultative date of equal treatment for same-sex and ent of measuring the increase in business status. Wockner International News #900, different-sex marriages means that married for his marriage bureau from prior years. July 25. same-sex couples will be treated the same During July 24-August 12, the bureau is- Inter-American Court on Human as married different-sex couples for all pur- sued 5,587 licenses; the average number for Rights – On August 25 the Inter-Amer- poses of New York tax law, even though those dates in prior years was about 2400. ican Court of Human Rights heard argu- this is inconsistent with some express pro- Thus, McSweeney estimated that approxi- ment in the case of Karen Atala Riffo, a visions of the state’s tax statutes and even mately one in four marriage licenses issued Chilean judge whose custody of her chil- though the federal Internal Revenue Ser- during that time period when to same-sex dren was terminated by the Supreme Court vice does not recognize same-sex marriages couples. New York Post, Aug. 22. of Chile in 2003 on grounds that her lesbi- for purposes of federal tax law. Utah – On July 16, Democrats in Utah an sexual orientation rendered her unfit to New York – On July 10, singer Ari Gold elected Jim Dabakis, an openly gay man, have custody. The Inter-American Com- and his boyfriend boarded a Short Line to be state party chairman. News reports mission on Human Rights reviewed the Bus Company vehicle to travel from the did not claim that he was the first openly case and issued a decision in Judge Riffo’s New York Port Authority to Monticello, gay man to serve as the chairman of any favor earlier this year. The decision to be New York, to visit Mr. Gold’s parents. They state party, but did claim that he was the rendered by the Inter-American Court sat in the front seat of the bus, physically first openly gay man to serve as chairman will be binding on Chile, by agreement of touching and sharing music from a por- of the Utah Democratic Party. Dabakis, an its government. This is reportedly the first table player through earphones. The driver art dealer, defeated his principal opponent sexual orientation related case to be consid- stopped the bus and requested that they by a vote of 528-71, a real close shave! ered by the court, according to a news re- move to the back, stating that the way they Wisconsin – Milwaukee County Ex- lease by the International Gay and Lesbian were sitting made him “uncomfortable.” ecutive Chris Abele has signed a bill that Human Rights Commission. When they refused the request, the driver was approved by the County Board (vote Australia – The Refugee Review Tri- summoned New York state troopers, hav- 13-5) to grant health benefits to domes- bunal was ordered by the Federal Magis- ing pulled off the highway. The troopers tic partners of county employees. As ap- trates’ Court to reconsider its decision to told the driver that Gold and his boyfriend proved, the measure would extend to both deny a visa to a man from Lebanon who were not violating any law and were within same-sex and different-sex partners of em- claims he would be subjected to persecu- their rights, and to proceed with the trip. ployees, but County Board Chairman Lee tion in his home country due to his past Gold informed the press about what had Holloway indicated that if budgetary con- sexual liaison with a Saudi Arabian prince. happened and contacted Lambda Legal, cerns require reducing the cost, the measure According to the record before the court, which wrote to Short Line on his behalf, could be cut back to cover only same-sex the man, whose name was not disclosed, pointing out the requirements of New partners. JournalSentinel (Aug. 5). A.S.L. said he left his boyfriend in Lebanon in York’s Human Rights Law. After a tele- 2008 and travelled to Saudi Arabia at the phone conference with Lambda attorney International Notes instance of the prince, who arranged for a Hayley Gorenberg, Short Line’s president visa and paid for his travel, and they had a sent a letter to Lambda dated August 5, sexual relationship “in return for financial indicating that the driver in question had United Nations – The United Nations’ and material support.” The man fled to been disciplined and counseled regarding Economic and Social Council voted on Melbourne when the prince had him de- compliance with the Human Rights Act, July 25 to restore to the International Les- ported from Saudi Arabia after discovering and that the company was having its labor bian, Gay, Bisexual, Trans and Intersex As- that he was having an affair with a friend and employment counsel provide training sociation (commonly known as ILGA) the of the prince. Despite these circumstances, to all of its drivers. The company antici- consultative status as a non-governmental the prince offered a reference on his behalf pated that all of its drivers would be trained organization that was lost in 1994 when due to his love for the man. The Immigra- within the next 60 days and that it would right-wing groups in the United States tion Department had ruled against his asy- LESBIAN/GAY LAW NOTES September 2011 193 lum request, finding inconsistencies in his Colombia – The nation’s highest tribu- opined that a person’s sex is determined at story, as did the Refugee Review Tribunal, nal, the Constitutional Court, ruled on July birth and cannot be changed. Daily Pak but the court pointed out that the Tribunal 26 that the nation’s legislature must accord Banker (Pakistan), July 19. had reached its conclusions without put- equal marriage rights to same-sex couples Russia – You are what you eat? There ting its doubts to the petitioner during his by June 20, 2013, or else such couples will were press reports at the end of August hearing. The Daily Telegraph, Aug. 2. In an- be entitled to formalize their unions be- about the arrest in Russia of a 21-year-old other case involving a gay man from Leba- fore any judge or notary. Ruling in a case man who reportedly made an assignation non, the Refugee Review Tribunal ruled in brought by Colombia Diversa, a gay rights with a gay man on the internet as a food favor of the applicant, who had married an organization, DeJusticia, a legal aid group, source. The man was arrested a few days Australian woman and whose immigration and several other organizations and indi- after human remains were found in the to the company had been sponsored by his viduals, the court accepted the argument city of Murmansk, based on suspicions by wife. He began frequenting gay clubs and that the constitutional requirement for investigators that the man met his victim his marriage fell apart when his wife found equality of treatment was violated by a law through the internet, invited him to his out. The Tribunal found that the man’s ex- providing that marriage is an exclusive con- house, stabbed him to death, cut him up, wife had notified his family in Lebanon tract between a man and a woman with the and ate the remains. Said Regional In- about his homosexuality, which the Tribu- purpose of procreation. Colombia already vestigative Committee Chief Fyodor Bly- nal found would lead to persecution if he provides civil unions for same-sex couples, udyonov, “The only motive for the murder was required to return to that country. Her- but they do not carry all the legal rights of was his desire to taste human flesh.” Bly- ald Sun, Aug. 26. marriage. The legislature has rejected mar- udyonov speculated that the suspect sought Australia – A man from Sydney whose riage equality bills six times so far, and is victims from the gay community “since this donated sperm was used by a lesbian couple split on the issue, with conservatives cling- category of people are private and prefer to conceive a child lost his battle to pre- ing to a traditional definition, while liberals not to disclose their contacts. In this way, vent the child’s co-parent from having her criticize conservative reliance on religious the cannibal intended to attract another name substituted for his on the child’s birth dogma to defend the existing definition. dozen people to his house.” This report certificate. According to press reports, the Colombia Reports, July 28; The Advocate; July takes the concept of hate crimes to a new man had maintained a relationship with 28. level. Windsor Star (Canada), Aug. 30. the child with the permission of its birth Ghana – Paul Evans Aidoo, described Thailand – Ruling in a case brought by mother. After the lesbian couple split up, as the minister for the Western Region of LGBT rights advocate Natee Teerarotcha- the other partner sought a court order Ghana, reportedly has called for the Bu- napong, the Chiang Mai Administrative against the New South Wales Registry of reau of National Investigations to round Court found that it was unlawful for the Births, Deaths and Marriages, to have her up gay people and present them for pros- municipality in Chiang Mai to adopt a name put on the birth certificate, pursuant ecution under the nation’s criminal code, rule governing the floats participating in a to a 2008 statute that authorizes same-sex which outlaws “unnatural carnal knowl- 2010 local festival that would exclude gay co-parents to be listed on a birth certifi- edge.” This development was seen as a po- people and transvestites from participation. cate. The judge indicated that under cur- litically motivated gesture in the run-up to The court ruled that criteria adopted by the rent law the sperm donor does not have a national elections next year. According to a municipality for participation violated the right to remain listed as the child’s parent. report on this incident by iNewspaper (UK) nation’s constitutional ban on discrimina- “I am not persuaded there is any contrac- on July 22, at present 38 African countries tion. Natee, hailing the result as having tual right which can affect this application,” maintain criminal penalties for homosexual broad application, urged that all state of- said NSW District Court Judge Stephen conduct. fices refrain from discrimination on any Walmsley. “I have considerable sympathy Italy – The Chamber of Deputies voted ground. Nation (Thailand), Aug. 10. * * * for (the man) – he has done what he con- on July 26 to reject legislation that would Nation (Thailand) also reported on Aug. siders has been his very best for the child.” have banned discrimination on the basis of 31 that an administrative court had con- ABC Premium News, Aug. 17; News.com.au, sexual orientation or gender identity. The vened for the first time to hear arguments Aug. 17. vote was 293-250, and spurred calls by Ital- on a 5-year-old petition filed by the Sexual Chile – President Sebastian Pinera has ian activists for a reaction from the Euro- Diversity Network against the Ministry of signed a legislative proposal to make civil pean Union, of which Italy is a member, Defense challenging the labeling of a for- unions available to same-sex partners. The where such non-discrimination protection mer transgender service member as “suf- measure would require legislative approval is considered a normative part of national fering from permanent psychosis” on her before it could go into effect. President law. The Berlusconi government, which has military records. The notation has made it Pinera, a conservative who faced opposi- a dominant position in the Chamber, is op- impossible for the service member, Samart tion to this proposal within his own party, posed to gay rights. Meecharoen, to find employment. indicated that he was firmly committed to Malaysia – The High Court in -East Uganda – The on-again, off-again pro- maintaining marriage in Chile as solely a ern Terengganu ruled that Ashraf Hafiz, posed draconian criminal statute against different-sex union, but believed that same- a 25-year-old transgender individual who gay people may be off again, according to sex couples should enjoy the same legal underwent male-to-female gender transi- recent press reports of action by Uganda’s rights other than the right to marry. tion surgery, was not entitled to a change of cabinet to block an attempt to reintroduce sex on her national identity card. The court the bill in the Parliament. Local observ- 194 September 2011 LESBIAN/GAY LAW NOTES ers speculated that formal opposition to the * * In addition to these award recipients, National LGBT Bar Association, report- bill from the cabinet meant it could not be NLGLA has published its 2011 list of Top ing on Judge Di Toro’s confirmation in an passed in the near future. National Post LGBT Lawyers Under 40, which can be Aug.. 5 press release, noted that five other (Canada), Aug. 24. found on the Association’s website. openly LGBT judicial nominees are await- United Kingdom – Robert Segwanyi, Florida Governor Rick Scott has el- ing action by the Senate: Alison Nathan, who claims to have been jailed and tor- evated an openly lesbian County Court Edward DuMont, Michael Fitzgerald, tured in Uganda for being gay, has won a judge, Victoria Brennan, to the 11th Ju- Albert Lauber, and Tax Court Judge Jo- reprieve from deportation from the United dicial Circuit Court. Judge Brennan was seph Gale, who was reappointed after his Kingdom. Although he had been sched- originally appointed to the Miami-Dade previous term ended in February. uled for deportation, appeals continued the County Court by Governor Jeb Bush in Human Rights Campaign announced Home Office stopped his deportation at 2006, after having served as assistant gen- Aug. 27 that Joseph Solmonese had given the last minute. More than 3500 people eral counsel to the governor. The April 5 notice that he would step down when his had signed an on-line petition supporting press release announcing her appointment contract as executive director expires in six his request for asylum in the U.K. Change. to the trial court of general jurisdiction months. HRC has launched an executive org News, Aug. 20. * * * On July 28, High did not mention that she is a lesbian who search process. Solmonese served at the Court Justice Supperstone ruled that a is raising children together with her same- head of HRC for six years, during which woman who had claimed to be a lesbian sex partner, but an on-line report about her two of the major goals on the LGBT feder- should be allowed to appeal against her July 15 investiture by the Woodhull Sexual al legislative agenda were achieved: passage removal to Uganda from the U.K. Even Freedom Alliance said that her partner and of a federal hate crimes law that is LGBT though an Immigration Judge ruled that two children participated in the ceremony inclusive, and passage of legislation repeal- she was not a lesbian, denied her asylum by placing a ceremonial hood over her head, ing the statutory “don’t ask, don’t tell” pol- claim and ordered her deported, the court and characterized her sexuality, which was icy, returning to the Defense Department said: “It is arguable that the claimant is at not mentioned during the ceremony, as the the discretion to change its policy on mili- risk of persecution because she is ‘suspected’ “elephant in the room.” The governor’s tary service by gay people. (The Defense of being a lesbian.” Daily Telegraph, July 29. press release lauded her for her dedication Department, as noted in our lead story this A.S.L. to public service throughout her career. month, has certified to Congress that it New York City Mayor Michael Bloom- has determined that gay people can serve Professional Notes berg has designated Ronald E. Richter, an openly without harming military readi- openly-gay New York City Family Court ness, and the ban will expire on Septem- Judge, to be the new Commissioner of the ber 20, 2011.) The other two items, not yet The National Lesbian and Gay Law- As Administration for Children’s Services of achieved, are passage of the Employment sociation has announced that Professor New York City. Judge Richter was a high- Non-Discrimination Act, and passage of Nancy Polikoff of American University ranking official in ACS prior to his judicial the Respect for All Marriages Act (which Washington College of Law will be the career. would repeal the Defense of Marriage Act 2011 recipient of the Dan Bradley Award, With Brian Bond leaving the White and establish a policy of federal recogni- which is presented to a member of the House staff to join the Democratic Na- tion of same-sex marriages when they are LGBT legal community whose work has tional Committee staff, the White House lawfully contracted in a jurisdiction that led the way the struggle for LGBT equality announced that Raul Alvillar, who has allows them). Under Solmonese’s leader- under the law. Prof. Polikoff is best known been serving as associate director for public ship, the membership numbers of HRC for her important work on LGBT families engagement in the Office of the Vice Presi- grew substantially, and the organization and the law, with a particular emphasis on dent, will temporarily assume responsibility was generally seen by national media as an child custody and adoption. Her law jour- as LGBT liaison for the Obama Adminis- authoritative speaker for the LGBT rights nal articles and books are among the most tration. A White House spokesperson an- movement, but not without controversy, frequently cited publications in the field, nounced that a permanent replacement for including a firestorm in 2007 over HRC’s by courts as well as by legal advocates. She Bond will be announced in October. support of a version of ENDA that did not also maintains a blog that is a vital source The United States Senate unanimously include protection against discrimination for news about new developments in the approved the nomination of Jennifer Di for transgender people. field. NLGLA has also announced that Toro to be an Associate Judge of the Dis- The National LGBT Bar Associa- the first place winner of this year’s Michael trict of Columbia Superior Court, making tion announced present of its 2011 Allies Greenberg Student Writing Competition her the second openly-LGBT judge to for Justice Awards to Frederick J. Krebs, is Michael Stefanilo from Northeastern serve on that court and the third openly president of the Association of Corporate University Law School. First runner up is LGBT judicial nominee of the Obama Ad- Counsel, and Robert J. Grey, Jr., execu- Natalie Amato from University of Mary- ministration to win confirmation. President tive director of the Leadership Council on land, and second runner up is Shawn Car- Obama also appointed the first openly- Legal Diversity and a partner at Hunton rol Casey from University of Arizona. The LGBT judge to that court, Marisa Demeo. & Williams in Richmond, Virginia. The awards will be presented during the Laven- Di Toro was legal director of the Children’s awards ceremony was held on August 5 in der Law Conference, being held this year Law Center, after having worked as a pub- Toronto in connection with the ABA An- in Los Angeles from September 8-10. * lic defender and for a private firm. The nual Meeting. Also at the ABA Annual LESBIAN/GAY LAW NOTES September 2011 195

Meeting, the ABA Commission on Sexual istrative tribunal within the U.S. Depart- the filing issue as to asylum, writing, “we Orientation and Gender Identity presented ment of Justice, has reversed a decision by disagree with the Immigration Judge’s de- a CLE program, co-sponsored by the ABA an Immigration Judge to deny asylum to a termination that, since the respondent had Section of International Law, the ABA gay, HIV-positive man who had not filed already submitted an asylum application . Center for Human Rights, and the Na- his asylum petition within one year of ar- . . based upon a fear of persecution on ac- tional LGBT Bar Association, on LGBT riving in the U.S., as normally required by count of his sexual orientation, his discov- rights from a global perspective. Panelists the relevant statute. The July 14, 2011, de- ery of his HIV positive status . . . would included NLGBTBA Executive Director cision by the Board has not been published, not qualify as a change in the respondent’s D’Arcy Kemnitz, Dixon Osburn (director but the attorney for the successful asylum circumstances that materially affected his of the Security & Law Program at Human applicant, Paul O’Dwyer, circulated copies eligibility for asylum. We find that it is a Rights First), El-Farouk Khaki (a refugee of the opinion to some immigration law- changed circumstance materially affecting and immigration lawyer), Shannon Minter yers with the applicant’s name and country his asylum eligibility. We therefore con- (legal director of the National Center for of origin blacked out to preserve his con- clude that despite his arrival in the United Lesbian Rights), and Niaz Salimi (director fidentiality. O’Dwyer is happy to provide States in 1998, the respondent should have at the Iranian Queer Organization). copies of the decision (paulodwyer@earth- been permitted to apply for asylum due to On August 8, the American Bar Associ- link.net) and has posted it on the American his discovery of his HIV status.” ation presented its ABA Medal for “excep- Immigration Lawyers’ Association website “In light of the Immigration Judge’s un- tional and distinguished service to the law” (www.aila.org) under “recent postings” as challenged conclusion that the respondent to David Boies and Theodore V. Olson, AILA Doc. No. 11072631. had shown a likelihood of persecution on co-counsel for the American Foundation The immigration statute provides that account of his HIV positive status,” wrote for Equal Right in Perry v. Schwarzenegger, a person has a one-year deadline after ar- the Board, “we find that the respondent also the lawsuit challenging the constitutional- riving in the United States to apply for met the lower burden of proof required to ity of California Proposition 8. The Medal asylum, unless a change in circumstances establish eligibility for asylum, i.e., a well- is awarded by vote of the ABA’s Board of “materially affecting” the person’s eligibil- founded fear of persecution on account of Governors. Past recipients have included ity for asylum would justify extending the a ground protected under the Act.” Thus justices of the U.S. Supreme Court and time. Eligibility for asylum is based on a the Board ordered that asylum be granted major leaders of the profession. Boies and reasonable fear of official persecution if the to Mr. O’Dwyer’s client. A.S.L. Olson are set to appear in the case again in applicant were required to return to his September, when the California Supreme country of origin. In this case, the appli- HIV/AIDS Litigation Notes Court hears argument about whether the cant, a gay man, had filed for asylum based initiative proponents of Proposition 8 on his sexual orientation, arguing that he New York - In Carmona v. Connolly, 2011 have standing to appeal the federal district is a member of a “particular social group” WL 1748694 (S.D.N.Y., July 12, 2011), court’s decision (which held the measure of gay men who were subjected to persecu- U.S. District Judge Denise Cote adopted a unconstitutional under the 14th Amend- tion in his home country. Unfortunately, he report by Magistrate Paul E. Davison that ment) to the 9th Circuit. filed more than a year after arriving in the recommended denial of a writ of habeas The Williams Institute at UCLA re- United States. Shortly after filing his peti- corpus sought by Jose Carmona, who was ported that Jovan Kojicic, a visiting scholar tion, he learned that he was HIV-positive convicted of reckless endangerment and at the Institute, has been appointed adviser and amended his asylum petition to argue disorderly conduct after spitting at police to the Prime Minister of Montenegro on that should he return to his home country, officers and saying that he had AIDS and Human Rights and Protection Against he would also be subjected to persecution they would catch it. The main focus of the Discrimination. Kojicic has organized for being HIV-positive. opinion was on Carmona’s claim that his conferences on the Balkans and LGBT law An Immigration Judge concluded that due process rights were violated when his and has helped Williams Institute organize the applicant had shown that he was likely medical records were admitted into evi- training for judges and law enforcement of- to be persecuted on account of both his dence at trial. Judge Cote quoted Supreme ficers in that region. A.S.L. sexual orientation and his HIV status in his Court authority that a habeas court’s job home country, but that due to the late fil- does not involve reexamining “state-court HIV/AIDS ing of his application, he could not qualify determinations on state-law questions,” for asylum. However, because the Immi- and Carmona was relying primarily on a Legal Notes gration Judge found that such persecution New York statute concerning HIV confi- would be “likely” to occur, thus meeting the dentiality. Even an erroneous evidentiary Board of Immigration Appeals higher standard for a form of relief called ruling would not support a habeas petition Grants Asylum to Gay, HIV- “withholding of deportation,” the Judge or- unless the evidence was sufficiently mate- Positive Applicant dered such relief, a status that would guar- rial to provide the basis for conviction or antee the applicant’s right to remain in the to remove a reasonable doubt that would Finding that learning that one is HIV- United States, but not a right to a green have existed on the record without it. positive is “a changed circumstance materi- card and eventual citizenship. Judge Cote found that Carmona had not ally affecting his asylum eligibility,” the U.S. The Board of Immigration Appeals re- explained how admission of his medical Board of Immigration Appeals, an admin- jected the Immigration Judge’s analysis of 196 September 2011 LESBIAN/GAY LAW NOTES PUBLICATIONS records would have violated his constitu- HIV-AIDS Law & Society Notes tional or federal legal rights. NOTED & New York – The U.S. Court of Appeals Blood Donation Policy – The Food & ANNOUNCEMENTS for the 2nd Circuit ruled in Goodrich v. Drug Administration is reportedly recon- Long Island Rail Road Company, 2011 WL sidering its rule under which any man who 3559997 (Aug. 15, 2011), that a railroad has had sex with another man even once Events of Note employee who claims to have suffered se- since 1977 is disqualified from donating vere emotional distress as a result of unau- blood. The rule, first adopted in the mid- The Seton Hall Law Dean’s Diversity thorized public disclosure of his HIV sta- 1980s in the wake of strong epidemio- Council is presenting “A Civilized Debate tus could not assert a claim for intentional logical evidence that whatever was causing on Same Sex Marriage,” co-sponsored by infliction of emotional distress under the Acquired Immune Deficiency Syndrome a variety of student organizations at Se- Federal Employers’ Liability Act (FELA), seemed to be transmitted through blood ton Hall Law School in Newark, N.J., on because his factual allegations do not satisfy exposure, is binding on all blood collection September 8 at 5 pm. Speakers include Dr. the “zone of danger” test that the Supreme entities in the United States. The rule has Stephanie Coontz (Evergreen State Col- Court described in Consolidated Rail Corp. been subjected to criticism ever since iden- lege), Sherif Gergis (a Ph.D. candidate in v. Gottshall, 512 U.S. 532 (1994), a case in- tification of a blood borne virus and the the Princeton University philosophy de- volving a claim against a railroad for neg- development of highly sensitive screening partment), Andrew Koppelman (North- ligent infliction of emotional distress. Ac- tests led to universal screening of donated western University Law School), and Amy cording to his complaint, Goodrich, who is blood for HIV in the late 1980s. Propo- Wax (University of Pennsylvania Law HIV+, was absent from work due to flu and nents of the existing rule have insisted that School). submitted a sick leave application in order it remains necessary because the risk that to be compensated for his sick days. He al- tainted blood will not be detected before Publications leges that a co-worker took the form from it is used for transfusion is higher than Goodrich’s locker, added the words “and zero. Opponents of the rule have pointed HIV positive” beneath the doctor’s flu di- out that the risk can be reduced to virtu- LGBT & RELATED ISSUES agnosis, and posted it on a public bulletin ally zero by a less restrictive rule, for ex- board on the railroad’s facility. Goodrich ample, barring blood donation by anybody Aloni, Erez, Cloning and the LGBTI Fam- claims to have suffered severe emotional who has had unprotected fluid-exchange ily: Cautious Optimism, 35 N.Y.U. Rev. L. & distress as a result and sued the railroad sex for some reasonably defined period Soc. Change 1 (2011). and the employee in federal court. District prior to the donation. As a result of the Appleman, Laura I., Oscar Wilde’s Long Judge Shira Scheindlin, finding that a zone rule, some institutions with policies ban- Tail: Framing Sexual Identity in the Law, 70 of danger allegation was necessary to bring ning sexual orientation discrimination have Md. L. Rev. 985 (2011). such a claim, dismissed the action against stopped holding blood drives, and the rule Ball, Carlos A., The Proper Role of Moral- the railroad. (She also dismissed the action has proved an impediment to the success of ity in State Policies on Sexual Orientation and against the co-worker, finding that FELA blood collection campaigns. The rule also Intimate Relationships, 35 N.Y.U. Rev. L. & only authorizes liability by the employer.) gives an incentive to closeted gay persons Soc. Change 81 (2011). Although the Supreme Court has not ad- to misrepresent their eligibility. Barnes, Mario L., and Erwin Chemer- dressed the question whether a “zone of Insurance Coverage – The U.S. -De insky, The Once and Future Equal Protection danger” allegation is necessary to state an partment of Health and Human Services Doctrine?, 43 Conn. L. Rev. 1059 (May IIED claim under FELA, the 2nd Circuit has announced that as part of the required 2011). panel, in an opinion by Judge Debra Ann health insurance coverage under the Pa- Blake, Valarie, It’s An Art Not a Science: Livingston, concluded: “In light of FELA’s tient Protection and Affordable Health State-Mandated Insurance Coverage of As- overall focus on physical injuries, the de- Care Act of 2010, eight preventive health sisted Reproductive Technologies and Legal cisions of our sister circuits, the dearth of services must be provided, inclduing HIV Implications for Gay and Unmarried Persons, decisions holding that IIED claims may be counseling and screening for sexually ac- 12 Minn. J. L. Sci. & Tech. 651 (Spring brought under FELA without satisfying tive women. Secretary Kathleen Sebelius 2011). the zone of danger test, and the unsettled announced this requirement in a statement Brower, Todd, Twelve Angry – and Some- state of the common law on this point at released on August 1. A.S.L. times Alienated – Men: The Experiences and the time of FELA’s enactment, we hold Treatment of Lesbians and Gay Men During that the zone of danger test applies to IIED Jury Service, 59 Drake L. Rev. 669 (2011). claims brought under FELA. Because Go- Burt, Robert A., Belonging in America: odrich failed to allege that he ‘sustain[ed] How to Understand Same-Sex Marriage, 25 a physical impact’ as a result of the defen- BYU J. Pub. L. 351 (2011). dants’ alleged conduct or was ‘placed in im- Busch, Patrick, Is Same-Sex Marriage mediate risk of physical harm by that con- a Threat to Traditional Marriages?: How duct,’ we affirm the district court’s dismissal Courts Struggle With the Question, 10 Wash. of his complaint.” A.S.L. U. Global Stud. L. Rev. 143 (2011). LESBIAN/GAY LAW NOTES September 2011 197

Caster, Austin, Don’t Split the Baby: How cal matter, discriminate against same-sex States and the United Kingdom, 21 Indiana the U.S. Could Avoid Uncertainty and Un- couples in access to legal marriage). Int’l & Comp. L. Rev. 111 (2011). necessary Litigation and Promote Equality Goldberg, Erica, Amending Christian Lopez, William M., Artificial Insemina- by Emulating the British Surrogacy Law Re- Legal Society v. Martinez: Protecting Expres- tion and the Presumption of Parenthood: Tra- gime, 10 Conn. Pub. Int. L.J. 477 (Spring- sive Association as an Independent Right in a ditional Foundations and Modern Applica- Summer 2011). Limited Public Forum, 16 Tex. J. on C.L. & tions for Lesbian Mothers, 86 Chicago-Kent Cohen, Harriet Newman, Bonnie E. C.R. 129 (Spring 2011). L. Rev. 897 (2011). Rabin and Tim James, Marriage Equal- Halley, Janet, What is Family Law? A Ge- Maazel, Ilann M., Bullying and the Indi- ity Remains an Aspiration, New York Law nealogy Part I, 23 Yale J. L. & Humanities 1 viduals With Disabilities Act, NY Law Jour- Journal, August 1, 2011. (Winter 2011). nal, July 22, 2011. Cullitan, Caitlin M., Please Don’t Tell Hamzic, Vanja, The Case of ‘Queer Mus- Malalis, Carmelyn P., and Sandra E. My Mom! A Minor’s Right to Informational lims’: Sexual Orientation and Gender Iden- Pullman, Expanding Legal Protections for Privacy, 40 J. L. & Education 417 ( July tity in International Human Rights Law and Transgender Employees, BNA Daily Labor 2011). Muslim Legal and Social Ethos, 11 Hum. Report, BNA Insights, August 12, 2011, Daly, Erin, Human Dignity in the Roberts Rts. L. Rev. 237 (2011). 156 DLR I-1. Court: A Story of Inchoate Institutions, Au- Harthill, Susan, Workplace Bullying as an McClain, Linda C., and James E. Flem- tonomous Individuals, and the Reluctant Rec- Occupational Safety and Health Matter: A ing, Respecting Freedom and Cultivating ognition of a Right, 37 Ohio N.U. L. Rev. Comparative Analysis, 34 Hastings Int’l & Virtues in Justifying Constitutional Rights, 381 (2011). Comp. L. Rev. 253 (Summer 2011). 91 B.U. L. Rev. 1311 ( July 2011) (Distin- Dent, George W., Jr., Straight is Bet- Healy, James, Band-Aid Solutions: New guished Lecture and Symposium Justice: ter: Why Law and Society May Justly Prefer York’s Piecemeal Attempt to Address Legal Is- What’s the Right Thing to Do? A Public Heterosexuality, 15 Tex. Rev. L. & Pol. 359 sues Created by DOMA in Conjunction With Lecture and Symposium on Michael J. (Spring 2011). Advances in Surrogacy, 31 Pace L. Rev. 691 Sandel’s Recent Book). Di Silvio, Lorenzo, Correcting Correc- (Spring 2011). McConnell, Donald R., Is Modern Legal tive Rape: Carmichele and Developing South Hennessy, Jennifer J., University-Funded Liberalism Still Compatible With Free Exer- Africa’s Affirmative Obligations To Prevent Discrimination: Unresolved Issues After the cise of Religion?, 33 Campbell L. Rev. 641 Violence Against Women, 99 Georgetown Supreme Court’s “Resolution” of the Circuit (Symposium 2011). L.J. 1469 (2011). Split on University Funding for Discrimina- Menon, Yamuna, The Intersex Commu- Dolovich, Sharon, Strategic Segregation tory Organizations, 96 Iowa L. Rev. 1767 nity and the Americans With Disabilities Act, in the Modern Prison, 48 Am. Crim. L. Rev. ( July 2011). 43 Conn. L. Rev. 1221 (May 2011). 1 (Winter 2011) (Critical examination of Herzig, David J., DOMA and Diffusion Milstein, Daniel, ‘Til Death Do Us File use of segregated unit for gay and trans in- Theory: Ending Animus Legislation Through Joint Income Tax Returns (Unless We’re Gay), mates in Los Angeles County as a method a Rational Basis Approach, 44 Akron L. Rev. 9 Cardozo Pub. L. Pol’y & Ethics J. 451 of protecting inmates from sexual assault 621 (2011). (Spring 2011). while avoiding the deprivations of indi- Karlan, Pamela S., Old Reasons, New Nagle, John Copeland, Pornography as vidual protective custody). Reasons, No Reasons, 27 Ga. St. U. L. Rev. Pollution, 70 Md. L. Rev. 939 (2011) (sug- Duncan, William C., Marriage and In- 873 (Summer 2011) (lecture on evolving gests that the problem of regulating inter- evitability: A Lesson from Maryland, 41 U. standards of equal protection analysis). net pornography be considered from the Balt. L.F. 99 (Spring 2011) (argues that the Lalor, Kay, Constituting Sexuality: Rights, aspect of pollution control laws rather than Maryland Court of Appeals’ 5-4 decision Politics and Power in the Gay Rights Move- freedom of speech). rejecting a claim to same-sex marriage pro- ment, 15 Int’l J. Hum. Rts. 683 ( June 2011). Nicholas, Peter, Common Law Same-Sex vides the correction constitutional analysis Larson, Stacy, Intersexuality and Gender Marriage, 43 Conn. L. Rev. 931 (2011). for courts facing this issue). Verification Tests: The Need to Assure Human Ngo, Ray L., The Elephant in the Room: Edelman, Alex, Show-Me No Discrimi- Rights and Privacy, XXIII Pace Int’l L. Rev. A Critique of California’s Constitutional nation: The Missouri Non-Discrimination 215 (Winter 2011). Amendment Process That Gave Birth to the Act and Expanding Civil Rights Protections Lee, Man Yee Karen, W. v. Registrar of Baby Elephant (Proposition 8) and a Call to Sexual Orientation or Gender Identity, 79 Marriages: From Transsexual Marriage to for Its Reform, 33 T. Jefferson L. Rev. 235 UMKC L. Rev. 741 (Spring 2011). Same-Sex Marriage?, 40 Hong Kong L.J. (Spring 2011). Elrod, Linda D., A Child’s Perspective of 549 (2011). Note, It’s Not Who Hires You But Who Defining a Parent: The Case for Intended Par- Lewis, Browne C., Three Lies and a Truth: Can Fire You: The Case Against Retention enthood, 25 BYU J. Pub. L. 245 (2011). Adjudication Maternity in Surrogacy Dis- Elections, 44 Col. J. L. & Soc. Problems 589 Epstein, Richard A., The Constitution- putes, 49 U. Louisville L. Rev. 371 (2011). (Summer 2011) (argues against retention ality of Proposition 8, 34 Harv. J.L. & Pub. Likins, Bryan M., Determining the Ap- elections for judges, on the ground that Pol’y 879 (Summer 2011) (conservative propriate Definition of Religion and Obliga- they pose a threat to judicial impartiality. libertarian takes issue with Judge Walker’s tion to Accommodate the Religious Employee See, e.g., Iowa). decision while generally supporting the Under Title VII: A Comparison of Religious O’Bryan, Kelly M., Mommy or Daddy idea that the state should not, as a politi- Discrimination Protection in the United and Me: A Contract Solution to a Child’s Loss of the Lesbian or Transgender Nonbiological 198 September 2011 LESBIAN/GAY LAW NOTES

Parent, 60 DePaul L. Rev. 1115 (Summer morality-based criminal laws that lack an Specially Noted: 2011). objection harm justification). Parkinson, Patrick, Accommodating Re- Szwalbnest, Olivia, Discrimination Be- Christine Michelle Duffy, Gender Iden- ligious Beliefs in a Secular Age: The Issue of cause of “Pizzazz”: Why Discrimination tity and Expression in the Workplace – A Conscientious Objection in the Workplace, 34 Based on Sexual Orientation Evidences Sex- Pragmatic Guide for Lawyers and Hu- Univ. New South Wales L.J. 281 (2011) ual Discrimination Under the Sex-Stereotyp- man Resource Professionals (Associa- (discusses English cases of employees who ing Doctrine of Title VII, 20 Tex. J. Women tion of Corporate Counsel, 2011), avail- lost their jobs due to their faith-based re- & L. 75 (Fall 2010). able as a download at www.acc.com/ fusals to provide services to same-sex cou- Tolchinsky, Abby, and Ellie Wertheim, accdocket/loader.cfm?csModule=security/ ples). Creative Parenting Agreements Still Needed getfile&pageid=1287371. An abridged Parness, Jeffrey A., Civil Unions and With Same-Sex Marriage, New York Law version will be published in the ACC’s Parenthood at Birth. Illinois Bar Journal, Journal, Aug. 29, 2011, at 3. journal, ACC Docket. This is an extensive Vol. 99, October 2011. Available at SSRN: Turney, C.T., Give Me Your Tired, Your look at the law and practice of providing http://ssrn.com/abstract=1885780 (urges Poor, and Your Queer: The Need and Potential a non-discriminatory workplace environ- that Illinois legislate to clarify the parental for Advocacy for LGBTQ Immigrant Detain- ment for all employees regardless of gender status issues created by the recently effec- ees, 58 UCLA L. Rev. 1343 (June 2011). identity and expression. It should prove to tive Civil Union Act). Vaggione, Juan Marco, Sexual Rights and be a valuable resource, especially for those Perrin, Andrew and McFarland, Kath- Religion: Same-Sex Marriage and Lawmak- counseling employers on how to comply erine, Social Theory and Public Opinion, 37 ers’ Catholic Identity in Argentina, 65 U. Mi- with the steadily increasing number of Ann. Rev. Sociology 87 (2011)(focus on ami L. Rev. 935 (Spring 2011). state and local laws banning discrimination attempts to measure public opinion about Wardle, Lynn D., The Boundaries of Be- based on gender identity or expression in same-sex marriage). longing: Allegiance, Purpose and the Defini- the workplace. Pritchard, Billie, Schoolhouse Rock: Les- tion of Marriage, 25 BYU J. Pub. L. 287 sons of Homosexual Tolerance in Keeton (2011). HIV/AIDS & Related Issues v. Anderson-Wiley from the Classroom to Wilkins, Herbert P., The Massachusetts the Constitution, 62 Mercer L. Rev. 1011 Constitution – The Last Thirty Years, 44 Suf- Bergallo, Paola, Courts and Social Change: (Spring 2011). folk U. L. Rev. 331 (2011)(includes detailed Lessons from the Struggle to Universalize Ac- Rempell, Scott, The Board of Immigration discussion of Goodridge, the same-sex mar- cess to HIV/AIDS Treatment in Argentina, Appeals’ Standard of Review: An Argument riage case). 89 Texas L. Rev. 1611 (June 2011). for Regulatory Reform, 63 Admin. L. Rev. Wrubel, Eric I., The Gay Divorcé: New Durojaye, Ebenezer, and Annie Muchiri, 283 (Spring 2011). York Will Have Many. Now What?, NY Addressing the Link Between Gender In- Robson, Ruthann, Lesbians and Abor- Law Journal, Aug. 19, 2011, p. 4. equality and Access to Microbicides in HIV/ tion, 35 N.Y.U. Rev. L. & Soc. Change 247 AIDS Response in Africa, 16 African J. Int’l (2011). Symposia: & Comp. L. 197 (2011). Saez, Macarena, Same-Sex Marriage, Same-Sex Cohabitation, and Same-Sex Fam- From Page to Practice: Broadening the CORRECTIONS: ilies Around the World: Why ‘Same’ is so Dif- Lens for Reproductive and Sexual Rights, 35 ferent? , 19 Am. U. J. Gender, Social Pol’y N.Y.U. Rev. L. & Soc. Change (2011) (in- & L. 1 (2011). dividual articles noted above). We need to make corrections to two items Schmidtke, Eric, Perry v. Schwarzeneg- Twelfth Annual Review of Gender and reported in the Summer 2011 issue of Law ger: Why the Federal Judiciary is the Right Sexuality Law, XII Georgetown J. Gender Notes. 1. In reporting on the Richland Course to Secure Marriage Equality, Remove & L. No. 3 (2011). County, South Carolina, Council’s adop- Unnecessary Disparities, and Integrate Same- Focus: What’s so “unusual” about W?, 41 tion of an anti-discrimination ordinance, Sex Couples Into Society, 32 Hamline J. Pub. Hong Kong L.J. Part 1 (2011), contains 8 we relayed misinformation from a careless L. & Pol’y 215 (Fall 2010). articles commenting on various aspects of reading of our source, referring to Char- Selected Human Rights Documents, W. v. Registrar of Marriages, a case concern- lotte incorrectly as the largest city in South Advisory Council of Jurists’ Final Report: ing gender identity that has received inter- Carolina when it is, indeed, in North Caro- Reference on Human Rights, Sexual Orienta- national attention. lina. (The source referred to it as the largest tion and Gender Identity, 11 Asia-Pacific J. International Journal of Discrimination city in “the Carolinas.”) We also reported on Hum. Rts. & L. 52 (2010). and the Law (UK), Vol. 11, No. 1/2 (2011), that Charlotte had not enacted such an or- Stine, Emily J., When Yes Means No, Le- is a special issue devoted to Equality and dinance, but we are advised that the City gally: An Eighth Amendment Challenge to the Workplace, focusing attention on the Manager, Curt Walton, issued a memoran- Classifying Consenting Teenagers as Sex Of- UK’s Equality Act 2010, which incorpo- dum on March 29, 2010, administratively fenders, 60 DePaul L. Rev. 1169 (2011). rates a ban on sexual orientation discrimi- amending the city’s Standards and Guide- Strader, Kelly, Lawrence’s Criminal Law, nation for the first time expressly stated in lines to forbid sexual orientation discrimi- 16 Berkeley J. Crim. L. 41 (2011) (ar- UK legislation. nation in employment policies by the city. gues that lower courts have failed to apply The City Manager relied on a City Code Lawrence v. Texas correctly to strike down provision delegating authority to the City LESBIAN/GAY LAW NOTES September 2011 199

Manager to promulgate rules and regula- tions on city personnel policy. 2. In report- ing on the 1st Circuit’s decision in Leavitt v. Correctional Medical Services, Inc., 2011 Westlaw 2557009 ( June 29, 2011), we oversimplified a comment about legal liability of prison officials for inadequate medical care of inmates (in that case, an inmate living with HIV). Under the 8th Amendment, inadequate medical care is a constitutional tort if the court finds that the lack of care is due to deliberate indifference to a serious medical condition. Negligence, even amounting to malpractice in terms of ordinary tort law, does not subject prison officials to constitutional tort liability un- less the deliberate indifference standard is met. We should not have used the phrase “totally immune,” since it has a distinctly different meaning in the context of consti- tutional litigation. A.S.L. EDITOR’S NOTE:

All points of view expressed in Lesbian/ Gay Law Notes are those of identified writers, and are not official positions of the Lesbian & Gay Law Association of Great- er New York or the LeGaL Foundation, Inc. All comments in Publications Noted are attributable to the Editor. Correspon- dence pertinent to issues covered in Les- bian/Gay Law Notes is welcome and will be published subject to editing. Please ad- dress correspondence to the Editor or send via e-mail.