June 2006 9th CIRCUIT ABSTAINS FROM DECIDING SAME-SEX MARRIAGE CASE

Arthur Smelt and Christopher Hammer are two tion standard of Railroad Commission of Texas fuses to recognize that marriage, or withholds guys looking for a court to hear their case, but v. Pullman Co., 312 U.S. 496 (1941), the fed- benefits arising from that marriage. Without they can’t seem to find one. The U.S. Court of eral court agreed with the state of California, standing, the federal courts have no jurisdic- Appeals for the 9th Circuit states that a federal and abstained from the case. tion, as there is no case or controversy, as re- court may refuse to hear a case on the constitu- Under the Pullman abstention standard, fed- quired for jurisdiction by U.S. Constitution art. tionality of a state anti-gay marriage law while eral courts should retain an action, but abstain III, § 2, cl. 1. Without standing, one is not vin- that law is the subject of ongoing litigation from deciding it, while a state court process dicating one’s own rights, instructed the Ninth likely to resolve the issue within that state. goes forward, when a case touches a sensitive Circuit, but those of anonymous third parties. Smelt v. County of Orange, 2006 WL 1194825 area of social policy that could be resolved in Generalized grievances may not be addressed (9th Cir. May 5, 2006). Further, the court holds the state litigation. This is because the state de- in federal court. A court cannot act on this sort that, since the Defense of Marriage Act, 28 cision might obviate the need for federal consti- of claim merely on the theory that, if these peo- U.S.C. §1738C, allows one state to reject an- tutionaladjudication, and any federal construc- ple do not have standing, no one will have other state’s recognition of a same-sex couple’s tion of state law might, at any time, could be standing, and the right will not be vindicated. marriage, at least one state must have in fact upended by a decision of the state courts. The LGBT public interest legal groups had urged recognized that couple’s marriage before that Pullman standard boils down into three factors the court to abstain in this case, as they are fo- couple has standing to challenge DOMA in fed- pointing toward abstention: (1) The complaint cused on winning the state litigation and are ea- eral court. must touch a sensitive area of social policy ger to avoid premature challenges to DOMA in Smelt and Hammer applied for a marriage li- upon which the federal courts ought not to enter the federal courts. cense in Orange County, California, but were unless no alternative to its adjudication is open. In a related California case, Smelt v. Superior refused one because they were both male. (2) Constitutional adjudication plainly can be Court, 2006 WL 1167002 (Cal. App. 4th Dist. Rather than pursue the matter in state court, avoided if a definitive ruling on the state issue May 2, 2006) (No. G036304) (unpublished), they applied for and received a domestic part- would terminate the controversy.It is not neces- the same two parties, Smelt and Hammer, nership declaration from the state of California. sary that the state adjudication obviate the need sought to compel the Superior Court of Orange They then sued Orange County and the state in to decide all the federal constitutional ques- County to force the California State Department federal court, charging a variety of incursions tions as long as it will reduce the contours of the to set a side a previously filed termination of on their constitutional rights, including equal litigation. (3) The possibly determinative issue their domestic partnership. The couple had ob- protection, due process, the Ninth Amendment of state law is doubtful. tained domestic partnership in California, as (reservation of unenumerated rights to the peo- All three factors were found present in this stated above. They then decided to renounce ple), the right to travel, and free speech. They case. First, the court goes to excessive length to the second-class status granted by domestic also charged that the California anti-gay mar- describe how “sensitive” are issues pertinent to partnership, and to challenge the state statute riage amendment, California Family Code marriage. Second, the appeals court recognizes forbidding them from marrying. They next de- §308.5, violates the Full Faith and Credit that, if California courts invalidate the statute cided that, to better their chances of obtaining clause. U.S. Constitution Art. IV, §1. And they under the California Constitution, there will be standing to challenge the anti-gay marriage challenged DOMA on the basis of due process, no need to decide the issues under the federal statutes, it would be better to retain their do- equal protection, right to privacy, and full faith Constitution. Third, the outcome of the cases is mestic partnership. It is not clear from the case and credit. very much in doubt. All three Pullman factors why the couple needed to resort to the courts, as Smelt and Hammer sought a declaratory indicate that the federal court, in its discretion, it does not appear that the Department of State judgment that the relevant sections of both stat- should choose abstention, held the Court of Ap- accepted their termination of domestic partner- utes are unconstitutional, an injunction man- peals. ship status, or refused to set it aside. Neverthe- dating the use of gender-neutral language in the Regarding their challenge to DOMA, the less, they went to family court, a division of the marriage laws, and the issuance of a marriage couple was found by the court to lack standing. Superior Court, which stated that it lacked ju- license to them. DOMA says that no state is required to give ef- risdiction to compel the Department of State to However, a group of cases, referred to collec- fect to any public act, record, or judicial pro- perform its duties, and dismissed the case. tively as The Marriage Cases, 2005 WL ceeding of any other state respecting a relation- However, the Appellate Court for the Fourth 583129 (Cal. Super. Ct. Mar. 14, 2005), are be- ship between persons of the same sex that is District stated that the Superior Court has the ing litigated in California state courts. The treated as a marriage, or a right or claim arising power to compel the performance of an act that state, therefore, moved for the federal court to from such relationship. 28 U.S.C. §1738C. One the law requires as a duty of an office, trust or abstain from hearing Smelt and Hammer’s case may only have standing to challenge such a station. Therefore, the appeals court issued a regarding the California statute until The Mar- statute, says the court, if one is in a marriage writ of mandate compelling the trial court to de- riage Cases are concluded. Under the absten- recognized by one state, and another state re- cide the case on the merits. Alan J. Jacobs

LESBIAN/GAY LAW NOTES June 2006 Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NYC 10013, 212–431–2156, fax 431–1804; e-mail: [email protected] or [email protected] Contributing Writers: Alan J. Jacobs, Esq., NYC; Bryan Johnson, NYLS ‘08; Sharon McGowan, Esq., NYC; Tara Scavo, Esq., Washington, D.C.; Jeff Slutzky, Esq., NYC; Ruth Uselton, NYLS ‘08; Eric Wursthorn, NYLS ‘07. Circulation: Daniel R Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212–353–9118; e-mail: [email protected]. Inquire for rates. LeGaL Homepage: http://www.le-gal.org Law Notes on Internet: Http://www.qrd.org/qrd/www/usa/legal/lgln ©2006 by the LeGaL Foundation of the Lesbian & Gay Law Association of Greater New York ISSN 8755–9021 102 June 2006 Lesbian/Gay Law Notes LESBIAN/GAY LEGAL NEWS

Supreme Court Declines to Intervene in However, the particular dispute in the case Georgia precedents would not allow considera- Washington State Gay Parenting Dispute was left to be address on remand. Sharon and tion by the courts of the measure’s validity until Annette were domestic partners. Sharon bore after it had been passed, and was affirmed by The Supreme Court announced without expla- two children and Annette wanted to adopt the Georgia Supreme Court. See O’Kelley v. nation on May 15 that it would not grant the pe- them. Complications ensued when the couple Cox, 278 Ga. 572, 604 S.E.2d 773 (2004). tition for certiorari in Britain v. Carvin, 2006 split up before the second adoption had been fi- Lambda Legal reinstated its lawsuit immedi- WL 271809, in which the WashingtonSupreme nalized. ately after the election results were certified, Court found that common law equitable princi- As presented to the U.S. Supreme Court in naming Governor Sonny Perdue as the defen- ples could be applied to adjudicate the parental Sharon’s certiorari petition, the question was dant.. rights claims of a lesbian co-parent. In re Par- whether, consistent with Supreme Court prece- Unlike some other state anti-marriage entage of L.B., 122 P.3d 161 (Wash., Nov 3, dents on the rights of natural/legal parents, a amendments that simply define marriage for all 2005). California court could finalize a co-parent purposes of state law as the union of one man The parties, Sue Ellen Carvin and Page Brit- adoption over the protest of the natural parent. and one woman, the Georgia measure added a ain, had decided to have a child together. The One of the important questions for LGBT law somewhat ambiguous provision that could be child was conceived through donor insemina- after Troxel v. Granville, 530 U.S. 57 (2000), interpreted as barring the legislature from cre- tion of Britain. The women raised the child to- which is left unresolved as a result of this cer- ating domestic partnerships or civil unions or gether for six years, then dissolved their part- tiorari denial, is whether the constitutional due conferring anything that might be called a nership and the following year Britain barred process rights of the legal parent would trump “benefit of marriage” on any same-sex rela- Carvin from further contact with the girl. Carvin co-parent rights, in a situation where a child is tionship, and stripping Georgia courts of any ju- sued, claiming she was a de facto parent who conceived by the joint agreement of the same- risdiction to decide legal issues that might arise should be entitled to assert parental rights and sex partners with the expectation that the co- from same-sex relationships. have visitation. The Washington Supreme parent will adopt post-natal, and then there is a This jurisdiction-stripping measure was not Court decided that she lacked standing to seek falling out at a later point and the adoption is ei- of merely hypothetical concern, since the city of visitation under the state’s third-party visita- ther incomplete or sought to be vacated by the Atlanta does have a domestic partnership sys- tion statute, but that under common law princi- legal parent. tem that might give rise to legal disputes, and ples the courts could determine if she was a de An optimistic way of looking at the certiorari same-sex partners might have partnership facto parent; if so, she would be entitled to the denial from the point of view of co-parent rights agreements whose enforcement could come be- full panoply of legal rights enjoyed by biologi- would be to speculate that the Court does not fore the courts. In Crooke v. Gilden, 262 Ga. cal and adoptive parents. see a significant constitutional objection to al- 122, 414 S.E.2d 645 (Ga. 1992), for example, Britain petitioned for certiorari, arguing that lowing the co-parent to adopt in such circum- the court ruled on a property dispute arising her constitutional rights as a birth parent would stances, but one cautions that denials of certio- from a lesbian couple’s partnership agreement. be violated by this proceeding, but failed to in- rari are not rulings on the merits, and may just Such an action might be barred under the terested the Supreme Court in her case. Now reflect that the Court does not see a diversity of amendment. Carvin will still have to prove that she should be lower court opinions requiring reconciling at Lambda’s challenge to Amendment One was considered a de facto parent, and depending on this point. A.S.L. based on two arguments: that the language ap- the outcome of the litigation, Britain might pearing on the ballot would seriously mislead again try to take the case through the appellate Georgia Court Strikes Down Marriage Georgia voters by creating the impression that process and up to the Supreme Court on her Amendment on Single-Subject Violation the measure dealt only with the definition of constitutional claim. A.S.L. marriage, and that the single-subject rule was Fulton County, Georgia, Superior Court Judge violated because voters who might favor civil Supreme Court Refuses to Decide Second-Parent Constance C. Russell ruled on May 16 that unions but disfavor marriage for same-sex part- Adoption Issue Amendment One, approved by Georgia voters ners would have to vote to ban civil unions in in 2004, was not validly enacted because it pre- order to enact their policy preference on mar- Continuing in its longstanding refusal to inter- sented voters with two distinct policy issues to riage, and vice versa. vene in state court decisions concerning sexual decide by one yes-or-no vote, thus violating a Judge Russell rejected the first argument, minority parenting issues (see above), the Su- well-established requirement of Georgia law. finding that under Georgia law the ballot lan- preme Court announced May 22 that it had de- O’Kelley v. Perdue, Civ. Action No. guage “need only be sufficient to allow voters to nied a petition for certiorari in Sharon S. v. An- 2004CB93494. Responding to a lawsuit file by identify which amendment they are voting on,” nette F., No. 05–1313, 2006 WL 993494, 75 Lambda Legal on behalf of six individual plain- and it is left to the voters to educate themselves USLW 3600. The petition for certiorari had tiffs and one organization, Russell said that the about the content of the proposed amendment. been filed after the California Supreme Court popularity of the measure with the voters was ir- “Plaintiffs concede that in this case the ballot refused to review the November 3 ruling by the relevant to the question of its validity. However, language was sufficient to tell voters which California 4th District Court of Appeal, see the state government announced an immediate amendment they were voting on,” said Russell, 2005 Cal. App. Unpub. LEXIS 10070 (Nov. 3, appeal to the Georgia Supreme Court, which and thus this basis for objection was invalid. 2006), the most recent state-court ruling in the agreed to expedited review and will hold a hear- However, Russell found merit to the single- ongoing dispute most prominently addressed in ing on July 27. subject issue, although she did not go along Sharon S. v. Superior Court, 31 Cal. 4th 417, 73 Ironically, Judge Russell had refused to rule with Lambda’s entire argument. The single- P.2d 554 (2003), in which the state’s highest on an identical claim when Lambda Legal filed subject rule does take account of the possibility court approved the concept of second-parent suit against the Georgia Secretary of State in that a proposed measure would do several adoptions as an interpretation of the state’s September 2004, seeking to block the measure things, all of which would be germane to its family laws. from the ballot. At that time, she found that main purpose. Arguing along these lines, the Lesbian/Gay Law Notes June 2006 103 state contended that all of the different aspects legal recognition in Georgia would have no ef- to the federal bench by President George H. W. of Amendment One were germane to the gen- fect on the state’s recognition of the union of a Bush in 1991, found that the amendment, eral subject of “the non-recognition of conjugal man and a woman as the only valid form of civil adopted in response to one of the plaintiff cou- relationships between persons of the same marriage. Deciding how same sex relationships ples having obtained a birth certificate showing sex.” between Georgians shall be treated by the state both men to be parents of the adoptive child, Judge Russell agreed that this was an accu- is not germane to the objective of recognizing was clearly targeted against gay parents in a rate general description of the effect of the only one form of marriage because it has no ef- way that violates due process and equal protec- Amendment, but pointed out that a reading the fect on achieving or furthering that result.” tion of the laws. Amendment’s language did not support this in- “This Court is well aware that Amendment In August 2002, Gregory Hampel and Ed- terpretation of its purpose. Both the ballot ques- One enjoyed great public support,” Russell mund Swaya, a Washingtonstate couple, jointly tion and the text of the amendment made clear concluded. “However, the test of a law is not its adopted V, an Oklahoma-born child, in a pro- that banning same-sex marriage was its pri- popularity. Procedural safeguards such as the ceeding in the King County, Washington,Supe- mary purpose, and to the degree that it ventured single subject rule rarely enjoy popular sup- rior Court. As part of that proceeding, Hampel beyond issues related to that purpose it was em- port. But, ultimately, it is those safeguards that and Swaya had agreed that they would bring V bracing more than one policy question. preserve our liberties, because they ensure that back to Oklahoma from time to time to visit with Lambda had argued that the amendment ap- the actions of government are constrained by her birth family. To avoid any problems that peared to have four policy objectives: to ex- the rule of law.” might occur during such visits, the men sought clude same-sex couples from marriage, to pro- Governor Sonny Perdue, the named defen- to have Oklahoma issue a new birth certificate hibit recognition or creation of legal unions dant in the case, responded by decrying the ef- for V showing both men as her parents. The between persons of the same sex, to bar courts fect of “activist judges,” and the following day Oklahoma Health Commissioner asked the from recognizing certain judgments, acts and it was announced that the state would appeal state Attorney General for advice, as Oklahoma records from other states and jurisdictions, and the ruling. The alternative, assuming a continu- does not authorize joint adoptions by same-sex to divest the courts of jurisdiction to rule on ing desire for a marriage amendment, would be couples, and the A.G. responded that under the rights arising out of same sex relationships. to call a special legislative session to quickly Full Faith and Credit Clause of the U.S. Consti- Judge Russell found that there were relation- approve appropriate language for the Novem- tution, the men were entitled to recognition of ships between these various purposes by which ber 2006 ballot, or perhaps more responsibly to the adoption judgment from King County, some could be cumulated under the broad de- refer the matter back to the legislature in the Washington, and the certificate was issued. scription of banning recognition for same-sex normal course for a considered determination But the matter was publicized to the press by marriages. Where the measure fell short, how- of whether such an amendment is necessary the government officials involved, stirring up ever, was in extending to non-marital legal rela- and how it should be written to comply with the social conservatives in the Oklahoma legisla- tionships, such as civil unions. court’s ruling. Perdue followed up with an an- ture, who enacted an amendment to the state “Defendant acknowledges that the provision nouncement that if the Supreme Court was un- adoption law governing recognition of out-of- could preclude future legislatures from recog- willing to hold an expedited review and issue a state adoptions. The statute provides, in gen- nizing civil unions,” she wrote. “At the same ruling immediately, he would call a special ses- eral, that out-of-state adoptions should be rec- time he also asserts that the word ‘union’ is in- sion for that purpose. The court then scheduled ognized, but the amendment states: “Except terchangeable with marriage. The two proposi- a hearing for July 27, and appointed a lower that, this state, any of its agencies, or any court tions are, however, incompatible. If ‘union ‘ as court judge to sit in place of a member of the of this state shall not recognize an adoption by used in the sentence is synonymous with mar- court who was previously a legal advisor to the more than one individual of the same sex from riage then the provision does not relate to civil governor. In the meantime, Georgia still has a any other state or foreign jurisdiction.” 10 unions and there is no reason to conclude that Defense of Marriage Act on the books and there Okla. Stat. Sec. 7502–1.4(A). future legislatures would be barred from creat- is no inclination in the legislature to pass a mar- Lambda sued on behalf of three couples, the ing or recognizing such unions.” riage or domestic partnership or civil union law, Hampel-Swayas and two lesbian couples, Lucy Judge Russell pointed out that a clear mean- so Georgia is safe for heterosexual privilege for and Jennifer Doel, who had jointly adopted a ing of the amendment’s language was to bar the the immediate future. A.S.L. child before moving to Oklahoma, and Heather legislature from conferring any of the benefits Finstuen and Ann Magro, who had a second- of marriage on same-sex couples under any le- Oklahoma Anti-Gay Adoption Provision Held parent adoption before moving to Oklahoma. In gal guise, not just through marriage. “The state Unconstitutional the cases of both lesbian couples, they were un- and its citizens may decide through legislation able to get proper birth certificates identifying or by constitutional amendment to reject civil U.S. District Judge Robin J. Cauthron ruled on both women as parents issued by Oklahoma unions and decide what status, if any, unmar- May 19 in Finstuen v. Edmondson, 2006 WL authorities, and were able to show how inability ried couples whether same or mixed sex will 1445354 (W.D. Okla.), that the state of Okla- to have their adoptions recognized was incon- have in the eyes of the law. The state may de- homa was obligated under the Full Faith and veniencing them on a daily basis because one cide how same sex relationships will be treated Credit Clause of the U.S. Constitution to recog- of the women, not being named on an Okla- under its tax, insurance, pension, inheritance nize the validity of adoptions of children by homa birth certificate, was unable to act as a or other laws. Those are all, in the first instance, same-sex couples that were approved by the parent in various circumstances. The Hampel- public policy decisions which are left to the courts of other states, and that a 2004 amend- Swayas alleged that although they had received sound judgment of the citizens and the Legisla- ment to the state’s adoption law prohibiting the requested certificate before passage of the ture. The single subject rule does not preclude such recognition violated the 14th Amend- amendment, they were uncertain whether it voters from making such policy judgments. ment’s due process and equal protection would be honored as a result of the amend- What it requires is that those questions be de- clauses. ment’s enactment, and so had avoided coming cided without being tied to other, unrelated, is- Granting summary judgment to the plaintiffs to Oklahoma with V to visit her birth family. sues.” in a case brought by Lambda Legal on behalf of The state sought dismissal on the ground that Russell concluded that “deciding that same three same-sex couples who had adopted chil- none of the plaintiffs had legal standing to chal- sex relationships should be given some form of dren out of state, the judge, who was appointed lenge the amendment’s constitutionality. Judge 104 June 2006 Lesbian/Gay Law Notes Cauthron found, ironically, that the Hampel- Such an act cannot survive under Due Process New Jersey Supreme Court Rules For Surviving Swayas, whose experience resulted in passage jurisprudence.” Partner in Will Contest of the challenged amendment, lacked standing Cauthron also found an Equal Protection vio- to bring this lawsuit because they had actually lation. Although on its face the amendment The New Jersey Supreme Court held in favor of received a birth certificate naming both men as does not discriminate based on sexual orienta- surviving same-sex partner Don Burton in his parents, and they had not come back to Okla- tion, she found that it was enacted with the in- will contest suit, In the Matter of the Estate of homa and suffered any personal deprivation. tention of denying parental status to gay par- Theodore M. Payne, Deceased, 186 N.J. 324, Thus, any injury on their part was wholly ents. As such, discriminatory intent was clear, 895 A.2d 428 (April 20, 2006). The court held speculative. On the other hand, she had no and the state’s arguments in support of the that the testator’s presumed intent to benefit his trouble finding that the other plaintiffs, the amendment, the same they made in the Due partner would be used to clear up ambiguities Doel family and the Magro-Finstuen family, Process context, were of no more weight here. left by his will. had satisfied the standing requirement, in light Cauthron found a strong analogy in the way Burton and Payne were partners and had of the very real deprivations they were suffering the Supreme Court dealt in the past with state been living in Payne’s New Jersey home until through the state’s lack of recognition of their laws that denied various legal rights to “illegiti- his death from AIDS. Payne also owned a vaca- parental status while they were residing in mate” children. By refusing to let such a child tion home in Maine with a friend, Frederick Oklahoma. bring a wrongful death action on the loss of a “Rick” Wohlfarth, under joint tenancy with the Lambda claimed that under the Full Faith parent, or to inherit by operation of law, or to right of survivorship. In his will, Payne specifi- and Credit Clause, Oklahoma was bound to compel child support because of their illegiti- cally provided that his estate should pay off “all recognize a court judgement from another state mate status, the states were depriving such just debts.” Additionally, the will specified that approving an adoption, and Judge Cauthron children of equal protection of the laws. his estate was to pay off the mortgage on the agreed, rejecting the state’s argument that Cauthron found the same to be true in this case, Maine home, but did not mention the same with adoption orders should be treated as less bind- as the adoptive children of the plaintiff parents respect to his New Jersey home. In New Jersey, ing than other court determinations. She also were similarly deprived of the benefits to which the inclusion of a general provision to pay “all rejected the state’s argument that it could ref- children are entitled by virtue of their legal re- just debts” is not generally construed to include use to recognize an out-of-state adoption judg- lationships to their parents. No justification paying off mortgages. ment because of Oklahoma’s legislated policy Oklahoma could put forth would support de- After Payne’s death on April 21, 2002, Wohl- against issuing birth certificates showing two priving these children of such rights. farth became the sole owner of the Maine home, parents of the same sex, finding ample support However, Cauthron rejected the plaintiffs’ and Burton the New Jersey home. Payne’s es- in U.S. Supreme Court precedents for the claim that the Amendment also violated the tate paid the mortgage on the Maine home, but proposition that validly-rendered court orders constitutional right to travel. Conceptually the refused to pay the mortgage on the New Jersey are not subject to some sort of public policy ex- Plaintiffs best suited to make this claim were home, claiming that the will did not require it. ception from recognition. the Hampel-Swaya family, and since they had Burton filed a claim against Payne’s estate, los- Perhaps more significantly, however, Judge been found not to have sustained an injury suf- ing in both the trial court and the Appellate Di- Cauthron found that the amendment substan- ficient to confer standing, they were no longer vision. He appealed again, and the Supreme tively violated 14th Amendment rights of the in the case to make the argument. As to the two Court of New Jersey granted Burton’s petition children and their parents. The Supreme Court lesbian couples who were living in Oklahoma, for certification. has recognized that adoptive parents have the Judge Cauthron found that they had not raised Before his death, Payne made several revi- same rights as natural parents, and that the pa- any claims that were focused specifically on sions to his will and sent many letters to his law- rental rights of natural parents are fundamen- travel between the states, and thus were left to yer.He and Wohlfarthhad each included provi- tal, as that term is used in constitutional law. For arguing that they were being treated differently sions in their wills providing that whoever died a state to refuse to recognize or to interfere with from other Oklahomans because they were from first would have their estate pay off the mort- the parental rights of a legal parent, there must out-of-state. That didn’t wash, however, be- gage on their Maine home. On November 11, be a finding of unfitness or harm to the child, cause no same-sex couples can jointly adopt 2001, Payne sent a letter asking his lawyer to and a statute that would seek to deny such children in Oklahoma in any event, so there change the description of Burton in his will rights categorically must be supported by a was no unequal treatment in that respect. from “friend” to “partner,”, and also wrote: compelling state interest. Interestingly, Judge Cauthron found that the “[a]s may be evident from my will, I want the The court found that the interests Oklahoma state had missed the point of the case by trying debt encumbering my real estate liquidated by claimed to be advancing by adopting this to rely heavily on the 11th Circuit’s decision in whatever means so that it passes to the benefici- amendment did not suffice to meet this consti- Lofton, in which that court had upheld Florida’s aries free and clear and I don’t want it to be nec- tutional test. The state made no showing how statutory ban on gay people adopting children. essary for the properties to be sold in order to denying recognition of these adoptions was ad- Cauthron found Lofton to be irrelevant to the is- satisfy the debt, which, I assume, would come vancing its interest in the welfare of the chil- sues in this case, because these Plaintiffs had due upon my death.” dren, or in preserving traditional families. After already adopted these children lawfully in The court held that the language of the will all, the out-of-state courts had determined that court proceedings, so the question of their right was ambiguous and required extrinsic evi- these adoptions were in the best interest of the to adopt was no longer before the court, the only dence, deciding that Payne believed that with- children. “Here, the out-of-state adoption de- question being whether Oklahoma could refuse out the specific provision that his estate pay the crees created families and the Amendment at- to recognize those lawful adoptions. entire mortgage on the Maine home, it would tempts to break up those families with no con- The state could attempt to appeal this ruling only pay half upon his death, explaining why he sideration either for the fitness of the adult to the 10th Circuit Court of Appeals, which included the specific direction as to that. It re- Plaintiffs or the best interest of the Plaintiff hears appeals from the federal courts in Okla- jected the lower courts’ reasoning that the in- children,” wrote Cauthron. “Rather, the homa. A.S.L. clusion of the provision showed he intended his Amendment attempts that break up only be- estate to pay off the Maine debts, but not the cause the Plaintiff adults are of the same sex. New Jersey ones. The court used the November 11 letter as evidence of Payne’s intent to leave Lesbian/Gay Law Notes June 2006 105 both homes debt-free, and reversed and re- marriage amendment is likely an unintended the stepmother of 20–year-old Justin Helt, a manded the lower court decisions. result, the court said that it felt “constrained” to gay man who had complained that a younger In his dissent, Justice Rivera-Soto stated that apply the statute as written. man who was his ex-boyfriend had been stalk- the majority’s “expansive application of extrin- The court also pointed out that an assaulted ing him. Helt’s stepmother asked Pinto if he sic evidence” reached too far. He claimed it is cohabitant may still enforce her rights under could talk to Helt about the problem. Pinto met the letter that is ambiguous, but that the will is the Ohio assault statute. However, although as- Helt and discussed the boyfriend, a 16–year- “patently clear” the estate should pay the debts sault and domestic violence are each 1st degree old identified in court papers as C. Pinto ad- on the Maine home, but not the New Jersey misdemeanors under the Ohio Revised Code, vised Helt to file a police report and get a re- home. the stigma associated with domestic violence as straining order, but Helt was unwilling to make It is interesting to note that the court barely well as the different responses by police and things official. acknowledges Payne’s or Burton’s sexual orien- courts to victims of domestic violence are just a Pinto and Helt met socially, at which time tation. Burton had argued that same-sex cou- few of the reasons why states adopt domestic Pinto also met C, who later came on to him ples should be entitled to the reasonable infer- violence laws in addition to assault laws. when they met socially after a chance on-line ence that the “common human impulse is to In a spate of recent cases challenging the encounter in a gay chatroom, but Pinto de- make appropriate provisions for one’s spouse,” constitutionality of the domestic violence law clined to have a sexual relationship with C, who but the court never discusses this contention, as applied to cohabitating, heterosexual cou- was underage. Nonetheless, Pinto and C stayed merely quotes Burton’s argument. The court ples, the Ohio Courts of Appeal have inter- in touch by telephone, and ultimately Pinto did, however, do exactly what Burton was ask- preted the marriage amendment’s effect on do- learned that C had sex with Aaron, a man who ing for and admit extrinsic evidence to deter- mestic violence law differently. Therefore, the turned out to be HIV-positive, under circum- mine what Payne actually intended. Maybe this Ohio Supreme Court has accepted this issue for stances that were not totally consensual. At a lack of explicit discussion of their sexual orien- review. See State v. Carswell, 109 Ohio St. 3d later point, perhaps during questioning in an tation is a sign of progress that the court felt the 1423, 2006 Ohio Lexis 1033; State v. Newell, ensuing police investigation, Pinto came to issue was so plain and so obvious that it didn’t 106 Ohio St. 3d 1554, 2005 Ohio Lexis 2403. conclude that “Aaron” was the same man with need to discuss it. Bryan Johnson With the United States Senate set to vote on a whom he had “hooked up” for one sexual en- Federal Marriage Amendment in June, and 18 counter at an earlier time. Ohio Appeals Court Says State Marriage states that have already adopted state constitu- The police investigation came up when C Amendment Narrows Application of Domestic tional amendments, cases like this are unlikely filed a police report about his sexual encounter Violence Law to be isolated to Ohio. Although legislators are with Aaron and mentioned Pinto in the report. C hardly clairvoyant, they would be wise to note alleged that he had sex with Pinto several times, Since the passage of the 2004 Marriage Validity the problems with the Ohio marriage amend- thus drawing Pinto into the investigation. (Pinto Amendment, which amended the Ohio State ment when drafting exclusionary legislation in was criminally charged and tried for sex with a Constitution to define marriage as the union of the future. In attempting to limit the rights of minor, and acquitted, when the jury apparently one man and one woman, citizens of Ohio are homosexuals, the Ohio marriage amendment concluded that C was not credible.) During the facing some unexpected changes in domestic has undoubtedly limited the rights of countless criminal investigation, Pinto at first answered violence laws. In a recent decision by the Ohio others. Ruth Uselton negatively when asked if he had any past rela- Court of Appeals, 3rd District, a conviction of tionship with Aaron, but then corrected himself domestic violence where a man assaulted his California Appeals Court Orders Reinstatement of later in the questioning. girlfriend in their shared home was reversed Gay Cop The Police Department launched its own in- based on the court’s interpretation of the vestigation of Pinto, which resulted in depart- amendment as precluding the legislature from Finding that the Visalia Police Department’s mental charges of failing to report information treating the conduct involved as “domestic vio- Chief, Jerry Barker, had abused his discretion about child abuse and lying during an investi- lence.”. State v. Shaffer, 2006 WL 1459769 in deciding to fire openly gay cop Bryan Pinto gation. The Department decided that he should (Ohio App. 3 Dist.). for failing to report about the sexual activities of be terminated, a decision upheld by an arbitra- The defendant’s appeal was based on the as- a 16–year-old gay man known to Pinto, the tor, and Pinto took the matter to the courts, sertion that the Ohio domestic violence statute, California 5th District Court of Appeal affirmed claiming that he had not violated the reporting R.C. 2919.25, is unconstitutional because it a ruling by TulareCounty Superior Court Judge rules and that terminating him based on the violates the Ohio Marriage Validity Amend- Paul A. Vortmann that Pinto should be rein- evidence was a violation of his right to due pro- ment. The text of the domestic violence statute stated, although still subject to some discipline cess of law. treats individuals who are unmarried but co- for having briefly lied during the course of a re- Judge Vortmann agreed with Pinto on the habiting as having the same status as married lated criminal investigation. Pinto v. City of main points, finding that Pinto’s information persons. But in defining marriage as the union Visalia, 2006 WL 1431088 (May 25, 2006). about C’s sexual activities was not acquired in of a heterosexual couple, the Ohio marriage The ruling, in an opinion by Justice Gene M. the course of duty and thus not subject to the re- amendment specifically provides that “[t]his Gomes, turned on a difference of opinion be- porting requirement. As part of this finding, it state and its political subdivisions shall not cre- tween the courts and the Police Department came out that Pinto was not aware that C and ate or recognize a legal status for relationships about whether police officers are on duty 24/7 Helt had a sexual relationship. Judge Vortmann of unmarried individuals that intends to ap- and thus required to report any information rejected the Police chief’s testimony that a po- proximate the design, qualities, significance or they might acquire, whenever and in whatever lice officer is always on duty for purposes of the effect of marriage.” Ohio Const. Art. XV,§11. capacity such information might come to them, reporting requirement. However, Vortmann According to the 3rd District Appeals court, about sexual abuse involving “children.” found that Pinto had lied, at least initially, dur- the Ohio domestic violence statute attempts to Pinto was hired for the Visalia police force in ing the investigation when asked about his own approximate a legal status of marriage for indi- March 2001, as an openly gay recruit. He was relationship with Aaron, and thus should be viduals who cohabit, which is unconstitutional sitting in a coffee shop off duty, but in uniform, subject to some discipline, to be determined by under the marriage amendment. Although the one day in September 2002 when he was ap- the Police Department. court recognized that this application of the proached by a woman who identified herself as 106 June 2006 Lesbian/Gay Law Notes Writing for a unanimous three-judge court of in Bedford v. New Hampshire Community Tech- Supreme Court said refusal of benefits to appeal panel, Justice Gomes rejected the po- nical College System and Breen v. New Hamp- same-sex partners of employees violated the lice department’s argument that any office who shire Community Technical College System, equal protection clause of the state constitu- lies during an investigation should be subject to 2006 WL 1217283 (not reported in A.2d), con- tion. And in Levin v. Yeshiva University,96 immediate discharge because his future credi- solidated cases brought by Gay and Lesbian N.Y.2d 484 (2001), New York’s highest court bility would be totally ruined. The city particu- Advocates and Defenders on behalf of two les- ruled that the university might have violated larly noted that a police officer has to be avail- bians who work for the Community College Sys- state and local discrimination laws when it re- able to testify in court against criminal tem, that denial of such benefits violates the fused to allow lesbian medical students to live defendants, and in that context credibility was state’s law banning sexual orientation discrimi- in university housing with their same-sex part- very important and could be impugned by de- nation. The state attorney general’s office indi- ners on the same bases that married students fense attorneys raising the issue of a past disci- cated that the opinion will be appealed. are provided such access. plinary action against the police officer for ly- Reversing a decision by the New Hampshire Judge McGuire found both of these cases to ing. Commission for Human Rights, McGuire found be instructive and more persuasive than the Gomes pointed out that under California law that both of the main theories for interpreting older rulings. “The Court agrees with the analy- a defense attorney would not be allowed to raise employment discrimination laws the disparate ses of the cases cited by the petitioners as to the any incident from more than five years previ- treatment theory and the disparate impact the- appropriate groups for comparisons,” she ously for the purpose of impugning a police offi- ory could be used to find a right to benefits for wrote. “The Commission determined that the cer’s credibility, and as Pinto’s discharge oc- the same-sex partners of public employees in petitioners were similarly situated to unmar- curred in 2003, reference to it would soon be the state. ried, heterosexual employees and therefore had barred by this kind of statute of limitations. Fur- Patricia Bedford and Anne Breen are both not been discriminated against based on their thermore, Pinto could explain the circum- long-term employees of the Technical College sexual orientation because unmarried, hetero- stances, which certainly mitigated the offense, System who have responsible supervisory posi- sexual employees also cannot receive benefits since he later corrected himself during the tions, Bedford as a department director who for their domestic partners. However, New course of the same interrogation, thus the in- oversees the administration of federal grants Hampshire law prohibits marriage between vestigation was not prejudiced by his initial and assists students with disabilities, and persons of the same sex and does not otherwise misstatement. Breen as director of security. Both are living in provide a means for same-sex couples to legally More to the point, Gomes found that dis- long-term committed relationships with same- sanction their committed relationship.” charging Pinto based on this hearing record was sex partners in which they are raising children. “Thus,” she explained, “same-sex partners a complete abuse of discretion by the police de- In Breen’s case, her partner is the biological have no ability to ever qualify for the same em- partment, which had adopted an interpretation mother of the child. ployment benefits unmarried heterosexual cou- of its reporting requirement that was not sup- Bedford and Breen both sought to have their ples may avail themselves of by deciding to le- ported by the language of the police department partners receive health and dental insurance gally commit to each other through marriage. manual and had never been publicly articu- coverage, and to be assured that they could use For this reason, unmarried heterosexual em- lated in the past, and that there was no clear paid bereavement leave should either of their ployees are not similarly situated to unmarried, rule in the department that mandated termina- partners die. In addition, Breen was interested gay and lesbian employees for purposes of re- tion for lying. Gomes noted that this was an iso- in getting insurance coverage for her child. ceiving employee benefits.” lated incident, and that Pinto’s general reputa- When the College refused their application for The court also rejected the argument that the tion for honesty within the department was benefits, they filed a complaint with the Human Commission could not override the administra- good. Rights Commission, but the Commission dis- tive rules and the state statute concerning eligi- Openly gay police officers who want to have a missed their complaints. According to the bility for public employee benefits, noting that social life and friends outside the police depart- Commission, although the state’s human rights when these rules list categories of “immediate ment are undoubtedly put in a difficult spot law does forbid sexual orientation discrimina- family” who may qualify, they preface the list when they see or hear about things going on in tion in compensation and benefits, the Com- with the word “including.” Rejecting the state’s social settings that might subject people to ar- mission did not consider the denial of partner argument that the relevant law “prohibits rest if an on-duty police officer were present. benefits to be sexual orientation discrimina- granting health benefits to anyone other than Where to draw the line between official duty tion, because unmarried opposite-sex couples state employees, their spouses and their minor, and private life is a vexing question, the police were also disqualified from receiving such fully dependent children,” McGuire pointed department arguing that there should not be benefits. Furthermore, the Commission out that “the State ignores the term ‘including’ such a line, the court responding that there is claimed that it lacked the authority to override which precedes the list of those individuals en- one and Pinto did not cross it in this case. state public employee benefits laws that define titled to health care benefits under the state. The court awarded attorneys fees and court eligibility in terms of traditional married cou- The term ‘including’ indicates that the factors costs to Pinto as the prevailing party in the ap- ples. listed are not exhaustive. Where, as here, the peal, even though he will still be subject to Such arguments have carried the day for gov- 1997 amendments to [the human rights law] some disciplinary action if restored to the po- ernment defendants many times in other states, specifically included a provision prohibiting lice force. A.S.L. in cases dating from the 1980s and 1990s, but sexual orientation discrimination in employ- have been less well received more recently. ment, and in the terms and conditions of that New Hampshire Court Rules for Partnership Most significantly, the highest courts in Alaska employment, it is apparent that use of the term Benefits In Statutory Case and New York have issued opinions in the past ‘including’ within the language of [the em- few years that reject the simplistic argument ployee benefits law] allows for the extension of In a ruling that could potentially extend a right that same-sex couples are not being discrimi- benefits to more than an employee’s spouse and to same-sex domestic partnership benefits to nated against because unmarried opposite-sex minor children. To find otherwise would be to all state and local government employees in couples are also denied benefits. negate the intent of the 1997 amendment or to New Hampshire, Merrimack County Superior In Alaska Civil Liberties Union v. State of find the two statutes contradictory.” It is an ele- Court Judge Kathleen A. McGuire ruled May 3 Alaska, 122 P.3d781 (Alaska 2005), the Alaska mentary principle of interpreting statutes that Lesbian/Gay Law Notes June 2006 107 courts strive to find an interpretation that will the employee and the designee have a conjugal ests of covered employees. If such an extension eliminate contradictions between statutes to relationship. of dependent benefits may not have been in the the extent possible. McGuire followed that The Utah State Retirement Board, the gov- minds of the legislators who enacted U.C.A. practice here. Concluding that the State’s argu- erning body for the Public Employees Health sec. 49–20–105, neither is it prohibited by the ments to justify their refusal of the benefits were Program under which Salt Lake City municipal plain language or apparent intent of the Public “insufficient to establish a legitimate nondis- employees get their insurance coverage, was Employees’ Benefit and Insurance Program criminatory purpose for the policy,” the court concerned whether implementing the program Act.” concluded that the policy violates the human would violate its fiduciary duties, in light of Turning to the prohibitory statute and rights law, and ordered the Commission’s deci- various provisions of state law. One such provi- amendment, Roth found no violation. “The sion to be reversed. sion, U.C.A. sec. 49–20–105, authorizes pub- court is aware of no Utah law of general applica- McGuire pointed out that the state could lic employers to provide group health insur- tion to marriage that establishes health benefits adopt “reasonable administrative rules” to de- ance coverage to employees and their as a perquisite of marriage,” he wrote. “Health termine whether any particular applicant was dependents. Another, the state’s Defense of insurance programs, however common, are not in “the type of committed relationship intended Marriage Act, U.C.A. sec. 30–1–4.1, prohibi- required by law of either public or private em- to qualify for the employment benefits” that the tions implementation of “any law creating any ployers, but are established voluntarily (or as plaintiffs were seeking, but expressed her view legal status, rights, benefits, or duties that are the result of bargaining) to meet market-driven that Bedford and Breen would qualify under substantially equivalent to those provided un- or other perceived needs. In their essence, em- any such reasonable regulations. der Utah law to a man and a woman because ployee health benefits are first and foremost Because of federal preemption in the area of they are married.” Finally, there is a recently simply a perquisite of employment. No spouse private sector employee benefits plans under enacted state constitutional amendment, Art. I, of an employee, whether employed in the pub- the Employee Retirement Income Security Act Sec. 29 of the Utah Constitution, which in addi- lic or the private sector, can require an em- (ERISA), McGuire’s ruling would extend only tion to defining marriage as consisting “only of ployer to provide health insurance on account to public employees. ERISA does not apply to the legal union between a man and a woman,” of his or her married status, unless such de- state and local government benefits plans. prohibits any other “domestic union” from be- pendent coverage is already provided by the The Concord Monitor reported on May 5 that ing recognized “or given the same or substan- employer as a matter of contractual or other Attorney General Kelly Ayotte will appeal the tially the same legal effect.” similar legal obligation. Rather, such benefits ruling to the New Hampshire Supreme Court. Judge Roth found that none of these three ultimately result from the relationship between On the other hand, Governor John Lynch wel- sources of state law would preclude implement- employer and employee, whether defined by comed the ruling, indicating that although he ing the municipal health insurance benefit. contract or ordinance, and only secondarily be- understood the AG’s desire to push the legal First, he found that “adult designees and cause of marriage, if the employer provides questions up to the highest state court, he sup- their children fall within the plain meaning of such benefits to spouses.” ports extending family benefits to same-sex dependent (i.e., ‘a person who relies on another Consequently, Roth concluded, “The Adult couples. In her opinion, Judge McGuire had for support,’ Meriam-Webster Online Diction- Designee Benefit therefore is not ‘substantially pointed out that the employees of the state uni- ary at www.webster.com) and are therefore equivalent’ to any ‘benefit provided under Utah versity are already receiving such benefits un- within the broad scope of ‘employee’s depend- law to a man and a woman because they are der a collective bargaining agreement negoti- ents’ who are ‘eligible for coverage’ as ‘covered married,’ nor does it make the relationship be- ated in 2000, but that agreement did not extend individuals’” under the benefits statute. tween employee and an adult designee ‘substa- to the community college system in which Bed- Roth reached this result by embracing a ntially equivalent’ in ‘legal effect’ to marriage ford and Breen are employed. A.S.L. pragmatic view of modern family life. “While between a man and a woman.” dependent coverage in employee benefit pro- Thus, Roth found that implementing the Utah Judge Green-Lights Salt Lake DP Benefits grams has traditionally been limited to spouses benefit is within the Board’s authority and not Program and dependent children, that is, generally prohibited by state law. A.S.L. those persons (but not all those persons) to Salt Lake County, Utah, District Court Judge whom the employees has legal obligations of Federal Rules Block Anti-Marriage Ad Broadcast Stephen L. Roth ruled on May 11 that neither support, as a practical matter single employees the Utah Constitution’s anti-marriage amend- may have relationships outside of marriage, The Christian Civic League of Maine’s plan to ment nor state statutes would prevent imple- whether motivated by family feeling, emotional broadcast a radio advertisement in support of mentation of a Salt Lake City ordinance that ex- attachment or practical considerations, which the Federal Marriage Protection Amendment, tends health insurance benefits to domestic draw on their resources to provide the necessar- in order to exert pressure on Maine’s senators to partners of city employees. In the Matter of the ies of life, including health care,” he observed. vote for the amendment when it comes up in the Utah State Retirement Board’s Trustee Duties “Employee health benefits are a form of al- Senate next month, ran into interference from and Salt Lake City Ordinance No. 4 of 2006, ternative compensation that can increase em- the Federal Election Commission (FEC) Act, Civ. No. 050916879. ployment satisfaction and reduce employee according to a unanimous May 9 ruling by a The ordinance (Ordinance No. 4 of 2006) stress; they can therefore contribute to reten- special three-judge federal district court. was to take effect on March 3, 2006. It allows tion of valued employees and help to attract Christian Civil League of Maine, Inc. v. Federal employees to identify an “adult designee” who new employees. Providing such benefits also Election Commission, 2006 Westlaw 1266408 would be entitled to the health insurance bene- can satisfy an employer’s sense of social obliga- (D.D.C.). fits, provided the designee has resided with the tion, whether in the private or public sector.The The proposed advertisement, which identi- eligible employee for not less than a year and flexibility to extend the traditional concept of fies both of Maine’s senators by name as having intends to continue to do so, is at least 18 years dependent as Salt Lake City proposes to do to “unfortunately” voted against the amendment old, and is economically dependent or “inter- meet the changing expectations of the market two years ago, comes into conflict with a rule dependent” with the employee. The benefits place and needs of employees can therefore be against corporations using their general funds would also cover any children of the adult des- argued to be in the City’s interest as an em- to broadcast “electioneering communications” ignee. There is no apparent requirement that ployer and public entity, as well as in the inter- within a specified period of time of a federal 108 June 2006 Lesbian/Gay Law Notes primary or general election. An electioneering amendment would adopt a national legal defi- could not be criminalized by the state as “big- communication is defined as a broadcast ad- nition of marriage as being limited only to the amy.” The Chief Justice agreed with this argu- vertisement that names a candidate and targets union of one man and one woman, thus overrul- ment, finding that the “purports to marry” the relevant electorate who would be voting on ing the Massachusetts marirage decision and prong of the bigamy statute raised constitu- that candidate. forestalling marriage litigation now pending in tional questions. Senator Olympia Snowe is an unopposed other states, including New York. However, the In particular,relating to Lawrence, Chief Jus- candidate for renomination in the Republican amendment would require a two-thirds major- tice Durham wrote: “I do not believe that the primary scheduled to be held on June 13. The ity in each house and ratification by three- conduct at issue threatens the institution of CCL wanted to broadcast its advertisement be- quarters of the states before it could go into ef- marriage, and I therefore cannot agree that it tween May 10 and early June, but the FEC Act fect. A.S.L. constitutes in ‘abuse’ of that institution… The blackout period begins on May 13. CCL Supreme Court in Lawrence... rejected the very brought a lawsuit against the Federal Election Utah Supreme Court Upholds Bigamy Conviction, notion that a state can criminalize behavior Commission in the District of Columbia, argu- Distinguishing Lawrence v. Texas merely because the majority of its citizens pre- ing that its First Amendment right to advocate fers a different form of personal relationship.” for support of the Marriage Amendment was be- When the U.S. Supreme Court ruled in Law- After referring to a recent Virginia Supreme ing unconstitutionally burdened by the FEC rence v. Texas (2003) that a Texas law against Court decision striking down that state’s forni- blackout period requirement. homosexual sodomy could not be enforced cation law based on Lawrence, the chief justice Under the FEC Act, such lawsuits are heard against consenting adults for their private sex- stated, “In my opinion, these holdings correctly by a specially-constituted court of one federal ual activity, how broad a right of sexual privacy recognize that individuals in today’s society circuit court of appeals judge and two district was it recognizing under the Due Process may make varied choices regarding the organi- court judges. In this case, the panel was made Clause? For example, would the same constitu- zation of their family and personal relationships up of Circuit Judge Judith W. Rogers and dis- tional principle prohibit punishing somebody without fearing criminal punishment.” A.S.L. trict Judges Louis F. Oberdorfer and Colleen for entering into a bigamous “marriage” as de- Kollar-Kotelly. The panel was unanimous in re- fined under state law? This is a particularly Federal Court Allows Harassment Claim Against jecting the CCL’s First Amendment challenge. pressing question in Utah, the home state of the School District to Continue In a joint opinion, they pointed out that the Mormon Church, where an indeterminate Supreme Court has upheld the blackout provi- number of fundamentalist Mormons continue to The U.S. District Court for the Eastern District sion against prior challenges involving so- engage in polygamous marriages, thus running of California dismissed in part and granted in called “issues advertising,” taking the position afoul of the state’s bigamy statute. part a school district’s motion to dismiss a high that Congress could protect federal elections On May 16, the Utah Supreme Court upheld school student’s claim for damages against the from undue corporate influence by imposing the criminal conviction of Rodney Hans Holm district for harassment. Armando Sandoval v. such a rule. under the bigamy statute, finding that neither Merced Union High School, 2006 WL 1171828 Perhaps more importantly, the court pointed the federal nor state constitutions would protect (E.D. Cal., May 3, 2006). The student, Ar- out that the statute left open plenty of alterna- his conduct from prosecution. See State of Utah mando Sandoval, claimed that he experienced tive ways for the CCL to communicate its mes- v. Holm, 2006 Westlaw 1319595, 2006 UT 31. “pervasive, severe and unwelcome” physical sage. CCL actually did not have enough money Specifically addressing the issue of Lawrence v. and verbal harassment at Merced Union High in its own coffers to fund this advertisement, so Texas, Justice Durrant, writing for the court, de- School based on his gender and sexual orienta- it had come up with a donor. It could just get its scribed that holding as “actually quite narrow” tion, and that the school district and its employ- donor to give the money to a political action despite “its use of seemingly sweeping lan- ees repeatedly and intentionally failed to take committee, which would not be barred from guage.” “Specifically, the Court takes pains to adequate measures to stop the harassment. broadcasting the ad during the blackout period. limit the opinion’s reach to decriminalizing pri- Sandoval claimed that he was called “fag- Or, it could spend the money to publish the ad vate and intimate acts engaged in by consent- got,” “fag,” “queer,” “homo,” and “cock- in newspapers and magazines in Maine, since ing adult gays and lesbians,” wrote Justice sucker,” that his classmates threatened to as- the FEC blackout period only applies to broad- Durrant. “In fact, the Court went out of its way sault, injure and kill him, that he was actually cast media. to exlude from protection conduct that causes assaulted several times on school grounds dur- CCL argued that radio was the most effective ‘injury to a person or abuse to an institution the ing and after school, and that the employees of way to disseminate this message speedily, but law protects.’” The court reasoned that since the school district were aware of the harassment the constitution does not require that the speak- the bigamy law protects the institution of mar- but repeatedly failed to take appropriate or nec- er’s preferred method of communication be riage, the state could take action to prosecute essary measures to stop the abuse. available at all times, so long as an alternative conduct inimical to that protected institution. Among other things, Sandoval claimed that method is available. The court noted that there But the opinion reveals a split in the court he was assaulted with a knife outside the school would be irreparable injury to the FEC and the over how to deal with the various questions pre- cafeteria, received life-threatening notes on his public interest if the ad were allowed to run sented, which included, in addition to due pro- locker,and was suspended from school after de- while this controversy over the blackout period cess privacy, equal protection and free exercise fending himself from being spit on and physi- was being resolved, so refused to award pre- of religion, as well as a vigorous argument over cally attacked on school grounds. He also liminary relief to CCL. the actual reach of the state law, which applies claimed that school district employees them- CCL moved the Supreme Court for an expe- both to plural marriages and “purported” mar- selves harassed and discriminated against him dited review of this ruling, but on May 15 that riages. A concurring opinion and a dissenting by preventing him from taking classes in which court denied the motion, 2006 WL 1314282, so opinion by Chief Justice Durham, signal con- he was enrolled, suspending him without justi- there will be no ruling on this before the June cerns by some members of the court about the fication, taking unwarranted disciplinary ac- 13 primary date. state’s intervention in family matters. tions against him, failing to allow him the same Senate Majority Leader Bill Frist has indi- The defendant in this case raised as part of privileges as other students, unfairly seeking to cated that he will bring the Marriage Amend- his defense that his multiple marriages were re- have him evaluated as “learning impaired,” ment up for a vote in the Senate in June. The ligious marriages, not civil marriages, and thus and intimidating him, among other actions. Lesbian/Gay Law Notes June 2006 109 Sandoval originally filed two administrative Title VII Claim Premised on Supervisor’s Sexual New York High Court Hears Arguments in 4 claims for damages under the California Gov- Solicitation Fails Marriage Cases ernment Tort Claims Act (CGTCA), on Novem- ber 22 and December 27, 2005, both of which The U.S. Court of Appeals for the 1st Circuit re- New York — The New York Court of Appeals were denied. Subsequently, Sandoval sued the jected a discharged employee’s argument that held oral arguments in the pending same-sex school district in federal court. he was the victim of an unlawful hostile envi- marriage cases of Hernandez v. Robles, Samuels The school district, while not addressing the ronment in violation of Title VII because of sex- v. New york State Department of Health, Kane v. merits of the case, moved to dismiss portions of ual comments and hints of homosexual solicita- Marsolais, and Seymour v. Holcomb on May 31. Sandoval’s complaint on two grounds. It moved tion by a supervisor. Fontanez-Nunez v. Janssen Due to widespread public interest and the tiny to dismiss one cause of action, for sex discrimi- Ortho LLC, 2006 WL 1216721 (May 8, 2006). courtroom in Albany, the court allowed a live nation, on the basis that the California Educa- The court affirmed summary judgment in favor webcast of the argument, but the gesture was in- tion Code does not provide a private right of ac- of the defendant employer granted by the U.S. effective, as insufficient bandwidth led to wide- tion, citing a prior federal court case from District Court in Puerto Rico. spread frustration throughout the state at the California, Nicole M. v. Martinez Unified School Mr. Fontanez-Nunez argued on appeal that a sputtering transmission. Happily, the argument District, 964 F. Supp. 1369 (N.D. Cal. 1997). dispute about material facts made summary was recorded and archived on the court’s web- However, the court dismissed this argument, judgment inappropriate, but the court found site for more leisurely review. noting that while Nicole M. was based on the that Fontanez-Nunez had failed to counter his The full arguments lasted almost two and a 1994 version of the Education Code, the code former employer’s version of events. half hours. The only attorney who did not use was amended in 1998. The court stated that un- While employed at Janssen, Fontanez-Nunez his full allotted time was Peter Schiff, the repre- der the amended code, the state legislature in- was promoted and received several salary in- sentative of the New York State Law Depart- tended for the provisions on discrimination to creases. However, during his last two years of ment, who followed the New YorkCity Corpora- be enforceable through a civil action, and employment, the employer claimed, he per- tion Counsel lawyer Leonard Koerner with a therefore a private right was permitted. formed poorly, leading to his termination. Upon disjointed me-too argument. The main points of Second, the school district moved to dismiss his termination, Fontanez-Nunez brought suit the government arguments were to insist that several of Sandoval’s causes of action, claiming under Title VII, alleging that his former super- the issue of defining marriage was a legislative that the allegations contained therein should be visor,Angel Natal, used foul language and often prerogative, that the case did not present an in- dismissed because they did not appear in made sexual comments to him or in his pres- stance of sex discrimination requiring height- plaintiff’s original administrative claim under ence. Some of these comments referenced ho- ened judicial scrutiny, and that analogies to the CGTCA. In evaluating this argument, the mosexual activity, and one time knowing that Loving v. Virginia were inappropriate. court noted that under California Code sec. Fontanez-Nunez was a pharmacist, Natal said Attorneys representing each of the four 945.4, an action against a public entity for that all pharmacists are homosexuals. Shortly plaintiff groups participated in the argument, damages arising out of an alleged tort must be before he was terminated, Fontanez-Nunez having divided up the main points among them- preceded by the timely filing of a tort claim and said, Natal remarked that he was looking for a selves. Lambda Legal’s Susan Sommer, repre- the rejection of the claim. It noted that under homosexual with whom to engage in sexual re- senting the plaintiffs in the case against New prior case law, the tort claim and the complaint lations. The termination decision was made by YorkCity’s clerk that was initially successful in must arise from the same fundamental facts, his last supervisor and another senior manager. the trial court and then reversed by the 1st De- and that a tort claim must give the public entity The court ruled in favor of Janssen because partment Appellate Division (with a dissent) adequate information to investigate the claims. Fontanez-Nunez failed to present any evidence led off with a fundamental rights argument, fol- It concluded that most of the allegations con- of discrimination and was unable to establish a lowed by Roberta Kaplan, a Paul Weiss partner tained in the plaintiff’s complaint arose from prima facie case. He presented no evidence appearing on behalf of the ACLU clients from the same allegations contained in the plaintiff’s that the real reason for his termination was age one of the upstate cases, who focused on the claim under the CGTCA. or gender discrimination. The court stated that standard of review. Attorneys for plaintiffs from However, with regard to one of the para- Natal’s comments might have been inappropri- Ithaca and the Albany area addressed issues of graphs of the plaintiff’s complaint, the court ate, but they were not severe or pervasive statutory interpretation (the well-worn argu- ruled that the allegations contained therein did enough to alter the conditions of Fontanez- ment that the gender neutral provisions of the not appear in plaintiff’s tort claims. Although Nunez’s employment and thus did not violate marriage law can be construed to allow same- the later tort claim was filed on December 27, Title VII. Natal’s comments were typically di- sex marriage without need to engage in consti- 2005, the court noted that one sub-paragraph of rected at many employees. Janssen had a griev- tutional decision-making) and the practical im- the complaint alleged events that occurred after ance procedure in place, but Fontanez-Nunez pact of the marriage exclusion. that date. The sub-paragraph noted that when never filed a grievance on these issues. Although the judges were careful not to tele- Sandoval returned to school in January 2006, The court explains its position by stating that graph their views about the merits, Judge Rob- harassment continued and the defendants con- the conduct was not severe enough and the ert Smith, the most recent appointee to the tinued to refrain from taking action to prevent plaintiff did not show that discrimination was a court, engaged in active questioning reflecting it. Here, the court noted, “plaintiff does not motivating influence in the decision to termi- considerable skepticism toward the plaintiffs’ merely elaborate or add further detail to his nate. As far as the court could see, Fontanez- arguments, but then also weighed in skeptically claim, but alleges two entirely distinct factual Nunez was terminated because of poor work with questions for Koerner and Schiff. Plaintiffs occurrences which transpired after the filing of performance and failing to improve his per- were counting on obtaining the votes of all three the two tort claims.” The court stated that the formance after being counseled by his last su- appointees of former Gov. Mario Cuomo school district would have had no notice of, and pervisor. Tara Scavo (Democrat) still on the bench, but one of those no reason to investigate, acts occurring after the appointees, George Bundy Smith, repeatedly tort claims were filed. Therefore, based on Cali- raised the question of legislative prerogative, fornia law, the court ordered the plaintiff to file raising red flags about his potential vote. a First Amended Complaint within 30 days. Jeff A last-minute complication that may affect Slutzky the ruling was the decision by Judge Albert M 110 June 2006 Lesbian/Gay Law Notes Rosenblatt to recuse himself from the case, re- employee whistleblowers. Ironically, had Ce- Island, golf club on behalf of Eugene Palumbo, portedly because his daughter, attorney Eliza- ballos taken his misgivings about the search who was subjected to extraordinary name- beth Rosenblatt of Irell & Manella in Los Ange- warrant to the press, he might have been pro- calling shortly after being employed as a caddy les, was actively involved in her firm’s pro bono tected from any subsequent retaliation. The when he lost two golf games to a female co- representation in pending same-sex marriage dissenters found that this irony undermined the worker. A manager referred to Palumbo in an cases in New Jersey, Washington State and logic of the majority’s position. in-house newsletter as a “beverage bitch” who California, on the side of the plaintiffs. Some California — The National Center for Les- was suited to performing “lap dances.” had seen Judge Rosenblatt as the potential bian Rights reported a satisfactory settlement Palumbo suffered repeated harassment from swing-vote on the seven-member court. In the of the complaint filed by John Manzos-Santos the manager and co-employees, impugning his event, only six members of the court sat for the and Alan Lessik against East Bay Iceland, an masculinity. In EEOC v. Tallgrass Golf Club, argument, and it was hard to see where the ice-skating rink, charging anti-gay discrimina- filed in the U.S. District Court for the Eastern fourth vote in favor of marriage would be com- tion in the way they were treated when they District of New York, the agency alleged a vio- ing from, as the other two appointees of Repub- went to the rink to train for pairs competition for lation of Title VII after unsuccessfully attempt- lican Gov. George Pataki asked few questions. the Gay Games. The men claimed that they ing a voluntary settlement. Tallgrasseventually According to a report in Gay City News quot- were subjected to discrimination for skating to- agreed to a monetary settlement, implementa- ing a spokesperson for the Court of Appeals, if gether in violation of the Berkeley Municipal tion of an EEOC-vetted non-discrimination the judges are deadlocked 3–3 after the oral ar- Code and the Unruh Civil Rights Act. East Bay policy, and employee training, governed by a gument, they may jointly select an Appellate agreed in settlement of the case to provide man- three-year consent decree. EEOC News Re- Division justice to receive the full record and datory diversity training to its staff and to make lease, May 1. transcript of the oral argument to cast a tie- donations to NCLR and the Federation of Gay North Carolina — U.S. District Judge Bul- breaking vote. On May 30, the N.Y. Law Jour- Games, as well as issuing a public apology and lock has dismissed as moot the case of Alpha nal published an article analyzing the positions confirmation of its commitment to equal treat- Iota Omega Christian Fraternityv. Moeser, 2006 taken by the almost two dozen amicus briefs ment of all patrons. East Bay’s Berkeley outlet WL 1286186 (M.D.N.C., May 4, 2006). The filed in the case. After the argument, the New will also host a Gay/Straight Skate Night once a Christian fraternity had been denied official York Times reported that tie votes on the Court month and take other measures, including pro- recognition by University of North Carolina at of Appeals have been rare, even when a mem- viding free admission for a year to Manzos- Chapel Hill, because it would not subscribe to ber has recused him- or herself from a case. The Santos and Lessik. NCLR Press Statement, May the university’s non-discrimination policies in- court customarily issues rulings within two 10. asmuch as they extended to sexual orientation months of an argument. In this case, with Judge Illinois — U.S. District Judge Hart found that and religion. The Fraternity claimed a constitu- Bundy Smith’s term expiring in September, it homophobic and racist remarks directed by tional right to exclude non-Christians and gays seems likely that an opinion will be issued over strikers against the plaintiff, a hotel employee from membership. In prior proceedings in this the summer. (A politically complicating factor who had crossed picket lines to work during a case, the court had decided that the school’s is Judge Bundy Smith’s desire to be reap- strike, were motivated by hostility at a strike- policy would violate the constitution to the ex- pointed to continue serving until the mandatory breaker,and thus would not subject the union to tent it went beyond status discrimination to dis- retirement age, which some speculated might liability under Title VII for discrimination on crimination based on belief. Capitulating to the affect his vote in this case, given who would the basis of race or sex. Parson v. Local 1, logic of the court’s ruling, UNC revised its pol- have to make the appointment!) A.S.L. UNITE HERE, AFL CIO, 2006 WL 1430554 icy so that student organizations that exclude (N.D. Ill., May 17, 2006). individuals from membership if they fail to sub- Federal Civil Litigation Notes Nebraska — In a hostile environment same- scribe to the beliefs articulated by the organiza- sex harassment case brought under Title VII, tion may achieve official recognition and privi- Supreme Court — In a 5–4 ruling that marks a District Judge Joseph F. Bataillon found that leges. The Fraternity then was granted further reduction in protected free speech Andrew Miller had not met the rather demand- recognition, based on its certification that it was rights for public employees, the Supreme Court ing standard for alleging a prima facie case in compliance with the new policy, and UNC ruled on May 30 in Garcetti v. Ceballos, 2006 based on an incident where a independent con- moved to dismiss the case. WL 1458026, that there is no First Amendment tractor allegedly simulated anal sexual assault North Dakota — Here’s an unusual mal- protection for statements a public employee on Miller while at work and Miller was sub- practice case, Carpenter v. Rohrer, 2006 N.D. makes as part of his or her official duties. The jected to sexual slurs and threatening state- 111, 2006 WL 1329514 (N.D. Supreme Ct., case concerned a Los Angeles County deputy ments. Miller v. Kellogg USA, Inc., 2006 WL May 17, 2006). Dan Carpenter, “a homosexual district attorney, Richard Ceballos, who 1314330 (D. Neb. May 11, 2006). It did not man with a history of being abused,” sought claimed to be the victim of retaliation within his help Miller’s case that the harassing conduct professional services from Mark Rohrer, a li- office for having uncovered defects in a search emanated from a contractor rather than a co- censed social worker. Roher provided therapy warrant and then spoken out about them inter- worker or supervisor. Kellogg had its own har- sessions for Carpenter, during which he would nally and in court. Justice Kennedy wrote for assment policy, and the person in question was occasionally hug Carpenter and say “love you, the Supreme Court majority that First Amend- admonished. The court found that Miller failed man,” which Roher evidently thought was ment protection for public employee speech ex- to show that he was singled out due to the sexual therapeutic but Carpenter found in appropri- tends to situations where the employee is desire of his harasser, and thus failed to meet ate. Claiming that Roher’s conduct was unpro- speaking primarily as a citizen and not as an the evidentiary requirement of showing that he fessional and inflicted emotional injury on him, employee. Kennedy asserted that as an em- was harassed because of his sex, as none of the Carpenter filed a malpractice claim against Ro- ployer, a government agency is free to restrict other indicia for an actionable case were pres- her and various other parties with whom he the official speech of its employees without ju- ent. claimed Roher was affiliated. The other parties dicial interference. The dissenters saw this as a New York — The Equal Employment Oppor- were dismissed from the case and a jury found distortion of existing case law, and the press tunity Commission announced the settlement that Roher was 30% at fault for Carpenter’s in- characterized the decision as cutting back of an unusual same-sex harassment hostile en- juries, but awarded no monetary damages. The sharply on constitutional protection for public vironment case. EEOC sued a Shoreham, Long court, however, awarded $2,648 in fees and Lesbian/Gay Law Notes June 2006 111 costs to Carpenter as the prevailing party. On lishing a large no-demonstration area around Appeals affirmed the dismissal of a taxpayer cross-appeals, the Supreme Court rejected the perimeter. Finding the area was larger than suit against the Multnomah County Commis- Carpenter’s argument that he was entitled to necessary consistent with the First Amendment sioners who had voted back in 2004 to author- damages even though the jury did not assess rights of the preachers, Caldwell issued a de- ize issuing marriage licenses to same sex cou- any, refusing to accept Carpenter’s arguments claratory judgment, while noting that the city ples. The injunctive relief sought in the lawsuit that this fatally undermined the jury verdict had moderated its protective policies since this was found to be moot, in light of a decision by and called for a new trial. On the other hand, 2003 incident so that injunctive relief was not the Oregon Supreme Court in Li v. State of Ore- the court rejected Roher’s argument that since necessary. A.S.L. gon, 110 P.3d 91 (2005), holding that the no monetary damages were awarded against county could not issue marriage licenses to him, he was the prevailing party at trial and State Civil Litigation Notes same-sex couples. The court of appeals also thus should not be responsible for paying fees agreed with the trial court that the county com- and costs to Carpenter. Justice Kapsner wrote California — The 1st District Court of Appeal missioners’ reliance on advice of counsel in for the court that so long as the jury found Roher has scheduled oral argument for July 10 in the voting to authorize the licenses insulated them responsible for some of Carpenter’s injuries, consolidated marriage cases, in which the San from personal financial liability for their ac- Carpenter was the prevailing party, and as such Francisco Superior Court ruled that denial of tions. A.S.L. was entitled to the fee award. marriage to same-sex couples violates the state Pennsylvania — City of York police officers, constitution. The California Supreme Court had Criminal Litigation Notes acting on a complaint that a gay disabled black refused to allow an expedited review by- man had been wrongly using his sister’s social passing the court of appeal. The decision below Federal — Gay City News (June 1) reported that security number to open lines of credit and pur- is reported as In re Coordinating Proceeding, federal officials are prosecuting Bob Loren, chase various items, burst into the man’s house Special Title, 2005 WL 583129 (Cal. Superior who entered into a scheme to hire a woman to while he was in bed with his lover, treated him Ct., S.F. Co., Mar 14, 2005). marry his same-sex partner, Chinese national disrespectfully, arrested him, subjected him to California — The San Jose Mercury News Hang Duan, so that Hang could live with Loren seizure of various items of personal property (May 5) reported that Santa Clara County Supe- in the United States. Deportation of the foreign and some pretrial incarceration, but ultimately rior Court Judge Mary Jo Levinger ruled that partner is usually part of the penalty in addition criminal charges against him were dropped for the city of San Jose had to pick up the litigation to any jail time and fines. The article claimed lack of evidence, after he claimed that it was all expenses of the plaintiffs in a suit that was this was the first time the federal government a misunderstanding. Then the man, Khalid Ab- brought to set aside the City Council’s 8–1 vote has sought criminal penalties to be imposed on dullah, filed a federal and state civil rights suit affirming recognition for same-sex marriages all the participants. against the police department and the particu- performed in San Francisco in 2004. The suit Arizona — The state court of appeals has is- lar officer who came after him, Anthony Fetrow, was essentially rendered moot when the Cali- sued a “corrected opinion” in State of Arizona v. as well as the chief of the police department. fornia Supreme Court ruled that the San Fran- Freitag, 2006 WL 1163079 (May 2, 2006), re- Abdullah v. Fetrow, 2006 WL 1274994 (M.D. cisco marriages were invalid. The suit was placing the one we reported in the April 2006 Pa., May 8, 2006). Responding to defendants’ brought by the Proposition 22 Legal Defense & issue of Law Notes. The opinion still rejects a motion to dismiss, District Judge Christopher Education Fund,an organization created for the constitutional challenge to the Arizona prosti- C. Conner dismissed the police chief from the purpose of opposing same-sex marriage in Cali- tution law based on Lawrence v. Texas. case, but left in play many of the charges fornia. Florida — The Florida Supreme Court sus- against Officer Fetrow. Of particular relevance, Connecticut — It is a pleasure to see a rou- tained a death sentence for Richard England in Judge Conner refused to dismiss sexual orien- tine divorce judgment in which the fact that fa- the murder of Howard Wetherell, a gay man tation discrimination charges. Fetrow had ar- ther is gay, left the marital house, came out, and who was targeted for theft and murder by Eng- gued that such charges should be dismissed be- is now unemployed and living with his mother land and an associate who had lived with cause anti-gay discrimination is not actionable, in Florida, seems to have played almost no role Wetherell for a while. The per curiam decision an argument that is rather difficult to sustain in in the court’s decisions on child custody, visita- in England v. State of Florida, 2006 WL light of Romer v. Evans and Justice O’Connor’s tion and responsibility, apart from issues pre- 1472909 (May 25, 2006), while sustaining the concurrence in Lawrence v. Texas. Without get- sented by geography, since mother and child conviction and sentencing, addresses a variety ting into the issue in any depth, Conner refused still reside in Connecticut. Isch v. Isch, 2006 of issues raised on appeal, none relating to any to dismiss that theory from the case, stating: WL 1230270 (Conn. Superior Ct., TollandDis- questions specifically pertaining to the victim’s “the Fourteenth Amendment forbids punish- trict, April 20, 2006) (not reported in A.2). sexual orientation or behavior at the time he ment based upon status, rather than conduct. Judge Klaczak matter-of-factly relates the story was killed. Accordingly, Abdullah’s “sexual orientation” of the break-up of the marriage, including the New York — N.Y. City Criminal Court Judge may prove relevant in these proceedings, and parties’ decision for a lengthy time when father Anthony J. Ferrara rejected a transsexual de- defendants’ motion to dismiss such claims will was well-employed, not to divorce so as to fa- fendant’s motion to withdraw her guilty plea on be denied.” cilitate father providing insurancing coverage a charge of loitering for prostitution in People v. Pennsylvania — Harrisburg police went a bit for wife and daughter. The divorce was evi- Lopez, NYLJ, 5/22/2006. Lopez claims that she overboard in protecting a gay pride festival held dently precipitated by father’s loss of employ- was not competent to make the decision to in a city park from being harangued by street ment and subsequent move to live with his plead guilty at the time because she was under ministers, according to a decision issued May 8 mother in Florida while looking for work there. stress at being treated as a male in the prison by U.S. District Judge William W. Caldwell in The court ordered joint legal custody with system and not receiving her medications on The World Wide Street Preachers Fellowship v. mother have residential custody and liberal the usual schedule. Judge Ferrara rejected this Reed, 2006 WL 1289215 (M.D. Pa.). The street visitation rights for father at his expense, and contention, finding that her behavior at the plea preachers wanted to spread their message minimal child support payments from father proceeding demonstrated both her competency about the sinfulness of homosexuality to people until such time as he obtains employment. and her clear understanding of the proceedings attending the gay pride festivities, but police of- Oregon —InBelgarde v. Linn, 2006 WL and the elements of the plea bargain to which ficers shooed them away from the area, estab- 1163803 (May 3, 2006), the Oregon Court of she was agreeing. A.S.L. 112 June 2006 Lesbian/Gay Law Notes Legislative & Administrative Notes cemetery or within 150 feet of a road leading ruled, the decision was reversed on other into such a cemetery. The Phelps group will un- grounds by the state supreme court, which has Federal — On May 18 the Senate Judiciary doubtedly challenge the Act as an unconstitu- not itself spoken to the issue. Furthermore, the Committee, meeting behind closed doors, ap- tional abridgement of political speech. off-duty conduct law provides no administra- proved the proposed Federal Marriage Amend- California — On May 11, the California Sen- tive mechanism for the employee to file an ad- ment, which Senator Majority Leader Bill Frist ate approved SB 1437, a measure introduced ministrative complaint or benefit from the in- announced would be brought up for a vote on by openly-lesbian legislator Sheila Kuehl, to vestigation and mediation normally offered by a the floor of the Senate in June. The text of the require that textbooks used to teach history in state civil rights agency, and its scope is un- proposed amendment approved in committee is the state specifically include the contributions doubtedly more limited than an express ban on unchanged from the version that failed to win that LGBT people have made. The bill passed sexual orientation discrimination would be. the necessary 2/3 majority when it was last on a 22–15 party line vote. Existing law re- Owens expressed concern that the proposed brought before the Senate. It reads: “Marriage quires textbooks to include the achievements of law would increase the litigation burden on in the United States shall consist only of the un- racial minorities, Native Americans, and other state employers and subject them to excessive ion of a man and a woman. Neither this Consti- ethnic groups. The measure stirred up a storm liability. Such concerns are generally belied by tution, nor the constitution of any State, shall be of controversy, and the governor’s office an- the experience under similar laws in other construed to require that marriage or the legal nounced that Governor Schwarzenegger states, which have not generated a storm of incidents thereof be conferred upon any union planned to veto it, even before the Assembly complaints and significant employer liability. other than the union of a man and a woman.” If could take it up for consideration, asserting the But perhaps Owens correctly realizes that approved by a 2/3 vote in both houses of Con- governor’s view that the legislature should not Colorado employers are much more homopho- gress and subsequently ratified by 3/4 of the micromanage the curriculum. Gay rights lob- bic than employers anywhere else, making states, it would effectively overrule same-sex byists indicated they would request a meeting comparisons to other states invalid? marriage now available in Massachusetts, ar- with the governor. San Francisco Chronicle, Illinois — Governor Rod Blagojevich, a guably prevent the recognition of same-sex May 26. Democrat, filed an administrative order on May marriages contracted in other countries, and California — ProtectMarriage, an organize 8 extending health benefits to same-sex domes- prevent any other state from enacting same-sex seeking a state constitutional amendment to tic partners of state employees in agencies un- marriages. It would also appear to block federal ban same-sex marriage in California, missed its der the Governor’s jurisdiction, effective July 1. or state courts from construing any federal or deadline to put its measure on the ballot, after The benefits include health, dental and vision state constitutional provisions as requiring gov- reporting it was having trouble obtaining suffi- insurance. As a practical matter, this was a ernmental bodies to extend any of the “legal in- cient signatures. This followed on a similar method of offering equal benefits to state em- cidents” of marriage to same-sex partners, al- problem encountered by another anti-marriage ployees in light of a new contract with the union though it is uncertain what impact this might group, Campaign for Children and Families, that represents many non-supervisory state em- have on existing or potential domestic partner- which also missed an earlier deadline but an- ployees, which negotiated such benefits in a ship programs adopted by state or local govern- nounced it would aims toward getting a meas- collective bargaining agreement. Those bene- ments. Towards the end of May there was some ure on the ballot in 2008. 365Gay.com, May 15. fits also go into effect on July 1. It apparently suggestion among political commentators that California — Los Altos — On May 10 the seemed appropriate to the governor that in this the Republican majority in the Senate might Los Altos City Council agreed unanimously to regard all executive branch employees should drop the second sentence of the proposed allow gay teens to have a parade through the have the same benefits package. The governor amendment in order to pick up enough votes to downtown area on June 4, apparently recogniz- also contacted legislative leaders about extend- pass the amendment. ••• Dueling coalitions ing a loophole in its prior decision during Feb- ing similar benefits to employees of the legisla- of religious leaders announced support or op- ruary to ban further consideration of any resolu- ture. Some legislators were immediately criti- position to the pending amendment in state- tions concerning sexual orientation, including cal, asserting that the governor’s action had ments that received prominent press notice. requests for permission to hold a Gay Pride Pa- usurped legislative policy-making privileges. Late in April, 50 prominent conservative clergy rade. So this will evidently be a gay pride pa- US State News, May 8. ••• The same day, issued their statement supporting the amend- rade that is not supposed to proclaim its name. anti-same-sex marriage forces submitted peti- ment, and announced the initiation of cam- San Jose Mercury News, May 11. tions with more than 345,000 signatures, seek- paigns to get their members to bombard Con- Colorado — The legislature approved a ing to get a marriage referendum on the ballot gress with messages of support. An interfaith measure to place on the ballot in November this November.The advisory referendum would coalition of 1600 clergy, under the name Clergy asking voters whether the state should recog- ask voters whether the Illinois Constitution for Fairness,took the contrary view, announcing nize same-sex partners for certain purposes. should define marriage between a man and a a petition drive to oppose the proposed amend- There are also likely to be several other meas- woman as the only legal valid union in Illinois. ment. ures initiated by petition on the ballot, includ- Proponents of the measure hope that its over- Federal — On Memorial Day, President ing one directly countering the legislature’s whelming passage would prompt the legislature Bush signed into law the Respect for America’s proposal, which would ban such recognition. to propose a formal constitutional amendment. Fallen Heroes Act, passed by Congress in re- Colorado — The legislature again passed a The governor stated his opposition. The sponse to the continued picketing of funerals of law to add sexual orientation to the state’s em- number of valid signatures necessary to get the U.S. servicemembers by the so-called Rever- ployment discrimination statute, but it was measure on the ballot is 283,111. Associated end FredPhelps and his followers, who contend again vetoed by the governor. Republican Gov- Press, May 9. ••• On May 17, Gov. Balgoje- that U.S. military deaths are attributable to ernor Bill Owens has repeatedly maintained vich signed into law a measure aimed at pro- God’s anger at U.S. tolerance of homosexuality. that such legislation is unnecessary because tecting funerals from protesters, inspired by the The Act places restrictions on protest demon- state court decisions already extend protection anti-gay protests at military funerals spear- strations in connection with funerals at national to LGBT employees under a law that bars dis- headed by Fred Phelps and his Kansas church, cemeteries. Froman hour prior to a funeral until crimination on account of lawful off-duty con- who contend that U.S. military deaths are at- an hour after a funeral, there can be no protests duct. Although the governor is correct that an tributable to God’s disapproval of U.S. pro- within 300 feet of the entrance of a national intermediate appellate court decision has so homosexual policies. The measure is called the Lesbian/Gay Law Notes June 2006 113 “Let Them Rest in Peace Act,” and probably questions with regards to its breadth, imple- 770 in 2003. Chicago Tribune, May 25. The re- violates the First Amendment rights of protest- mentation, and enforcement.” These would be bound might be at least partly attributable to in- ers. credible comments were this the first such bill creased staffing driven by the worsening situa- Louisiana — The Louisiana Senate voted to be enacted in the U.S., but the language in tion in Iraq, and the increasing unwillingness of 24–10 on May 23 to reject Senate Bill 347, and question has been used in eight other states and LGB members to participate in the required the state House voted 58–38 to reject House the District of Columbia as well as scores of mu- charade.. Bill 853, both of which would have added sex- nicipalities, so Douglas’s comments about the Science — Another scrap of evidence in the ual orientation to the law forbidding discrimi- definition are blatantly disingenuous. The leg- accumulating scientific study of human sexual- nation by state agencies. Arguably, neither islature has scheduled a special session on ity emerged late in April as reports emerged of a measure would have changed the legal obliga- June 1 to deal with veto override votes, but it new study showing the influence of hormones tions of state agencies very much, since the was not certain whether a proposal would be early in life in “gendering” the brains of men 14th Amendment of the federal constitution al- made to override, for which a 2/3 vote is re- and women differently.

Federal Courts Find Constitutional Flaw in U.S. District Judges Emmet G. Sullivan in Wash- bank directors that the Red Cross planned on Laws Funding Overseas HIV Prevention Efforts ington and Victor Marrero in New York both screening blood donors with the test to prevent concluded that this situation was clearly distin- further transmission of HIV via blood transfu- Two different federal district judges, in Wash- guishable from the principal case on which the sion. The Red Cross commenced ELISA testing ington, D.C., and New YorkCity, independently government relies, Rust v. Sullivan, 500 U.S. on March 7, 1985, but all new donations of reached the conclusion that a provision of the 173 (1991), in which the Supreme Court up- blood were not tested until March 22, 1985. U.S. Leadership Against HIV/AIDS, Tubercu- held against a 1st Amendment challenge a On April 18, 1985, the patient, then a losis and Malaria Act of 2003, requiring many statutory restriction on use of federal funds in 16–year-old girl, was admitted to the defendant organizations to adopt an explicit anti- any family planning program that provides hospital by her physician, who had admitting prostitution policy in order to receive funding abortion services. In upholding that restriction, privileges, but who was not a hospital em- for their HIV prevention work overseas, vio- the Court pointed out that the restriction was on ployee. On April 19, 1985, the patient under- lated the 1st Amendment rights of the organiza- the family planning program that received fed- went elective orthoscopic surgery. During the tions involved. Alliance for Open Society Inter- eral money, and not on all activities of the re- surgery, the patient was transfused with blood national, Inc. v. United States Agency for cipient organizations, provided they kept any provided by the Red Cross that had not been International Development, 2006 WL 1293686 abortion-related activities separate and distinct tested for HIV.One day later, the director of the (S.D.N.Y. May 8, 2006); DKT International, from the programs receiving the federal money. hospital’s blood bank received a letter from the Inc. v. United States Agency for International By contrast, as the district judges pointed Red Cross recalling all units of blood so that Development, 2006 WL 1359331 (D.D.C. May out, the challenged restriction goes to the or- HIV testing may be performed. 18, 2006). ganization, not just to the program receiving The defendant hospital complied with the Responding to information that prostitution federal money, and thus overreaches in a way Red Cross’ request, and the director of the was playing a major role in the spread of HIV, forbidden by long-established 1st Amendment blood bank admitted that had the plaintiff not Congress included in 22 U.S.C. sec. 7631(f) a precedents on the subject of unconstitutional received the units of blood used during the requirement that USAID funds not be dis- conditions. transfusion, those units of blood would have bursed to any organization that does not have a In both cases, the courts were dealing with been among the units returned to the Red policy explicitly opposing prostitution and sex cross-motions for summary judgment, granted Cross. In an uncontroverted affidavit, the pa- trafficking, and also that no funds appropriated the plaintiffs’ motions and denied the govern- tient stated that at no time did her physician or under the Act can be used to “promote or advo- ment’s motions. A.S.L. the hospital tell her: “(1) the ELISA test was cate the legalization or practice of prostitution available at the time of her surgery; (2) the or sex trafficking.” In implementing regula- Hospital Not Liable to Patient Who Contracted blood that she was given during surgery was not tions, USAID required that any organization HIV via Blood Transfusion tested for the presence of HIV antibodies; (3) applying for federal money for HIV prevention the blood that she was given during surgery had work certify its compliance with both of these On May 16, 2006, the Connecticut Supreme been recalled by the Red Cross; and (4) she requirements. The plaintiff organizations in Court granted a defendant hospital’s motion for could have postponed her surgery... a few days these cases have refused to comply with the re- summary judgment in a case brought by a pa- until tested blood became available.” Approxi- quirement to establish and certify a policy, in tient who contracted HIV from a blood transfu- mately ten years after the surgery, the defen- both instances arguing that this would under- sion at the hospital in April 1985. Sherwood v. dant learned she was HIV+, infected by the mine their efforts to work with groups of sex Danbury Hospital, 2006 WL 1193215. untested blood administered to her during her workers who are trying to cope with HIV issues. The record indicates that on March 2, 1985, surgery. The essence of their argument in challenging the FDA approved the ELISA test for the pur- The patient’s treating physician said he in- the statutory restriction is that it goes beyond pose of determining whether blood samples formed the patient about the general risks asso- permissible bounds under the 1st Amendment were infected with HIV.On March 5, 1985, the ciated with blood transfusions, but conceded by conditioning eligibility for federal funding Connecticut regional medical director of the that “he was unaware that a test had been ap- on compelled speech. American Red Cross notified all hospital blood proved for screening HIV antibodies in blood Lesbian/Gay Law Notes June 2006 117 and that all newly donated blood would be conclude that a hospital owed a patient the duty the risks of unprotected sex, but this defense tested in the future. [The physician] further ac- of a fiduciary.” Eric Wursthorn cut no ice with McPhee, who refused to let knowledged he [did not advise] the plaintiff Whitfield present evidence on the point, and about the option of postponing surgery until Washington Appeals Court Affirms Virtual Life who also gave little credence to expert testi- fully tested blood became available.” The di- Sentence in HIV Transmission Case mony from a clinical psychologist, who said he rector testified that “neither he nor anyone else had found “no evidence, psychologically, that from the defendant’s blood bank had told the On May 16 the Court of Appeals of Washington his assaultive conduct was intentional. Hence, plaintiff, prior to surgery, that the ELISA test upheld a minimum sentence of 178 years in it seems to me a diminished capacity defense is was available for screening blood for the pres- prison for Anthony Eugene Whitfield, at once a appropriate.” ence of HIV antibodies. [The director] further victim and a victimizer, who transmitted HIV to Judge McPhee found Whitfield guilty on all testified that when the plaintiff was transfused, five women and placed an additional dozen charges except for one of the witness-tampering he had assumed that the blood had not been women at risk. State of Washington v. Whitfield, charges, evidently finding insufficient evi- tested for the presence of HIV antibodies.” 2006 WL 1321059 (Wash. Ct. App., Div. 2, dence that one of the phone calls specifically After pretrial discovery, the plaintiff’s negli- May 16, 2006). Rejecting a variety of constitu- dealt with proposed testimony. That made little gence claim specifically alleged “ first, that the tional arguments, the court found that the sen- difference to the sentencing however, as he was [hospital] negligently had failed to advise her or tence was not excessive in light of the aggra- sentenced to a cumulative total of 2,137 months her treating physician... that the ELISA test was vated circumstances of the case. in prison, or slightly more than 178 years, with being implemented in Connecticut and that the The tragic tale begins with Whitfield as a no possibility that he could be released during entire blood supply would be tested soon; and prison rape victim in Oklahoma, acquiring HIV his lifetime. second, that the defendant negligently had and learning he was infected in 1992. Whit- Writing for the court of appeals panel, Pre- failed to notify her after her surgery that she had field was released from prison in 1995. At that siding Justice Elaine Houghton rejected every been administered blood that had not been time, a psychologist at the prison noted that argument Whitfield raised on appeal. Perhaps tested for the presence of HIV and that she... Whitfield “is well aware of the consequence of of most consequence, she disagreed with Whit- was at risk for HIV infection and should be his disease and this seems to frighten him. If he field’s contention that his sentence constituted tested.” becomes a threat to the public it will not be be- cruel and unusual punishment in violation of It was uncontested that the hospital “did not cause of ignorance.” the state constitution. Noting state precedents know, and could not have known which units of Whitfield moved to Washington state in explaining that “a punishment is grossly dis- blood in its blood bank’s inventory had been 1999 and initiated a string of sexual liaisons, proportionate only if the punishment is clearly screened for the presence of HIV antibodies during which he never informed any partner arbitrary and shocking to the sense of justice,” and which units had not been so screened.” that he was HIV-positive and usually refused to Houghton concluded that based on every factor Justice Richard N. Palmer wrote the unani- use condoms. He managed to get three women Washington courts consider in evaluating sen- mous opinion, affirming the Superior Court’s pregnant, and was finally discovered by law en- tences, Whitfield had fully merited being decision to grant summary judgment to the hos- forcement authorities as a result of contact trac- locked up for the rest of his life. pital. He wrote that the patient’s negligence ing procedures by the Thurston County Public “Here,” she wrote, “Whitfield had inter- claim was, in fact, an informed consent claim Health Department when some of his infected course with 17 women, repeatedly concealing and that it was foreclosed under Petriello v. victims identified him as a former sex partner. his HIV status and insisting on unprotected Kallman, in which the court stated “a hospital At one point, a public health official got sex. Thus, he committed first degree assault, has no legal duty to obtain a patient’s informed Whitfield to come in for testing, notified him intentionally exposing victims to HIV.This is a consent for a surgical procedure to be per- that he was infected, and got him to sign a state- serious and violent offense against a person… formed by a nonemployee physician.” ment acknowledging counseling, but the evi- Whitfield asserts that he would be facing a Palmer wrote that this was not a case where dence showed that Whitfield threw away his more lenient sentence if he had committed the treating physician “reasonably did not copy of the counseling materials and continued murder. His argument lacks merit because he know about the status of the ELISA testing pro- to engage in unprotected sex. fails to show how his sentence is so grossly dis- gram because, according to the plaintiff’s own A friend of one of Whitfield’s sex partners proportionate to the gravity of the number of his experts, this information was widely known. In testified that the subject of HIV came up in a convictions that it constitutes cruel and un- such circumstances, the defendant [hospital] conversation because she was a home care usual punishment.” reasonably relied on [the treating physician] to nurse. The friend said that Whitfield had com- The court also rejected Whitfield’s argument advise the patient that she could eliminate the mented that if he had HIV, he would infect as that he should not have been subjected to pun- risk of contracting HIV through a blood transfu- many people as he could. There was testimony ishment because all of his sex partners had con- sion by postponing her surgery until all blood in that he made statements like this to other peo- sented to have unprotected sex with him. Whit- the defendant’s blood bank was screened for ple as well. field protested Judge McPhee’s refusal to let HIV antibodies.” Under this rationale and the Prosecutors filed a 17 count first degree sex- him raise a consent defense at trial, citing a rule in Petriello, the hospital was not required to ual assault charge against Whitfield. After he prior decision in which the court of appeals had get informed consent. Rather, a patient’s physi- was locked up, he called his most recent girl- entertained a consent defense in the context of cian has this responsibility since they are best friend three times to attempt to persuade her to injuries suffered during an athletic contest. He situated to advise the patient. Had the patient testify that he had told her he was HIV-positive argued that “the victims accepted the risk of walked into the hospital from the street, re- before they had sex, despite a court order that contracting a sexually-transmitted disease — questing surgery, and the hospital’s employees he not contact her, so the charges were ampli- including HIV — by consenting to have sex performed the same way, the hospital would fied by three counts of witness tampering and with someone who maintained a sexually pro- have been liable. three counts of violating a no-contact order. miscuous lifestyle and who habitually used The patient also alleged that the hospital vio- Whitfield waived a jury trial, and argued be- drugs.” lated a fiduciary duty. Palmer found this argu- fore Thurston County Superior Court Judge Rejecting this argument, Judge Houghton ment unpersuasive, finding “scant reason to William Thomas McPhee that all his sex had wrote, “By analogizing HIV exposure during a been consensual with adults who understood consensual sexual encounter to an assault dur- 118 June 2006 Lesbian/Gay Law Notes ing a sporting event, Whitfield asserts that ‘the nothing about how this incident came to the at- ord that the defendant had engaged in conduct risk of contracting a gamut of sexually transmit- tention of the police, but one presumes that J.M. that could transmit HIV,a technical violation of ted diseases — including HIV — is eminently complained about it, because he testified the testing statute. “Minor argues that there was foreseeable and an inherent part of engaging in against Mathonican at the trial. J.M. was tested no probable cause to believe that blood, semen, unprotected sex.’ Whitfield’s assertion does not and has not become HIV+, so the prosecution or any other bodily fluid capable of transmitting persuade us because a person cannot consent was entirely for non-consensual sex, not for HIV was tranferred from him to the four-year- unless he or she knows all relevant facts.” transmission of HIV.The deadly weapon aspect old victim. Minor maintains that there is no evi- Houghton pointed out that similar arguments is relevant mainly to the issue of how much time dence he ejaculated or exposed the victim to had been raised and rejected by various courts Mathonican would have to serve before he any other type of bodily fluids and that the juve- in past HIV-related prosecutions. could apply for probation, according to the nile court’s order requiring him to submit to The court also rejected equal protection ar- court. HIV testing must be vacated,” Richli noted. guments, which Whitfield based on his conten- The trial judge gave a somewhat confusing “The People contend that the evidence of the tion that HIV-positive people had been singled charge to the jury, which the appeals court victim’s direct oral contact with minor’s penis out for prosecution, and that the state was not unanimously found could have misled jurors was sufficient to give the juvenile court prob- going after people who were out exposing their into believing that Mathonican could be con- able cause to believe that there was a transfer of sex partners to other sexually transmitted dis- victed even though the jury was not unanimous bodily fluids. We agree with the People… The eases. The court noted that in fact state criminal in finding that he was guilty of any one of the record before us shows that the victim had oral statutes also applied to other diseases, and that charged acts. contact with minor’s penis. This evidence is the legislature could rationally attach greater But the majority of the appeals court found, sufficient to ‘lead a person of ordinary care and criminality in terms of longer sentences on peo- by recourse to earlier cases, mostly decided prudence to entertain an honest and strong be- ple who intentionally spread HIV. A.S.L. from the late 1980s to the mid–1990s, that it lief’ that minor’s semen came into contacat was well established that HIV contained in with the victim’s mouth or skin,” wrote Richli, HIV A Deadly Weapon in Texas, But New Trial seminal fluid to which somebody is exposed quoting from People v. Butler 31 Cal. 4th 1119 Ordered in Assault Case during sex is a deadly weapon, and that there (2003), a leading California case construing was no error in the trial court instructing the the HIV testing statute. A sharply divided Texas appeals court ruled in jury to that effect, even though no expert medi- “The issue here is not whether there was Mathonican v. State, 2006 WL 1291754 (Texas cal testimony was produced at the trial. probable cause for the juvenile court to believe Ct. App., Texarkana, May 12), that “HIV- This evoked a spirited dissent from Justice that minor infected the victim with HIV but positive seminal fluid” is a “deadly weapon” in Ross, who pointed out, among other things, that whether the victim was exposed to minor’s bod- the context of the criminal prosecution of a man the evidence that J.M. was actually exposed to ily fluids capable of transmitting HIV.” The for having unprotected oral and anal sex with Mathonican’s seminal fluids under circum- court concluded there was probable cause to another man. Although the court overturned a stances that could transmit HIV was rather in- order the testing. A.S.L. 97 year prison sentence due to errors in the trial conclusive, and that the state of scientific court’s charge to the jury, it upheld the trial knowledge about transmission and treatment AIDS Litigation Notes court’s charge on the deadly weapon point and has been constantly developing, such that the said that such a charge can be made at the re- conclusion of the old cases was not necessarily U.S. Federal — 2nd Circuit — A panel of the trial. still valid. Ross pointed out that it was ques- U.S. Court of Appeals, 2nd Circuit, rejected a The opinion by Chief Justice Josh R. Mor- tionable whether these issues are appropriate petition for review of a decision by the Board of riss, III, is frustrating to read, because Morriss for judicial notice of facts that are presumably Immigration Appeals to rubber-stamp an Im- never clearly sets out the underlying story of the known to everybody. Furthermore, the trial migration Judge’s rejection of Evelyn Sichone’s case, and the dissent to this part of the opinion judge never formally took judicial notice of any petitions for asylum, withholding of removal, by Justice Donald R. Ross is no more helpful in facts on the record, but just presumed to charge and relief under the Convention Against Torture this respect. the jury that a deadly weapon was involved in (CAT) on grounds of her membership in a par- From bits and pieces of fact strewn through the case, an ultimate fact that should have been ticular social group, “Zambians who share the the opinion, it appears that Mathonican and up to them to decide based on appropriate ex- common, currently immutable characteristic of J.M. may have had a sexual relationship prior to pert testimony. A.S.L. being HIV-positive.” Sichone v. Gonzales, 2006 the events giving rise to the charge, although WL 1426294 (May 19, 2006). Ms. Sichone ar- that point was contested at trial, and that on the California Appeals Court Upholds HIV Testing gued that she would not be able to get the life- occasion in question on December 26, 2003, Order for Minor Convicted of Lewdness With an saving medications accessible to her in the U.S. J.M. was inebriated to the extent of being un- Infant were she returned to Zambia, because they are able effectively to consent to sexual relations, only available at private hospitals which she another contested point. According to the grand A panel of the California 4th District Court of could not afford, and that she would be subject jury indictment, Mathonican “did then and Appeal found that Riverside County Superior to social stigma in her home country. The court there intentionally and knowingly sexually as- Court Judge H. Dennis Myers was justified in agreed with the IJ that these do not provide sault [J.M.] by causing [J.M.’s] sexual organ to ordering HIV testing for Cameron C., a juvenile grounds for remaining in the U.S., stating that penetrate [the] anus of the said Earl Edward defendant convicted of forcing a child to fellate “the government’s inability to afford HIV medi- Mathonican, without [J.M.’s] consent, and the him. In re Cameron C., 2006 WL 1454777 cation for all of its people, however regrettable, said Earl Edward Mathonican knew that the (May 26, 2006) (not officially published). Cam- is not the sort of extreme treatment that shows said [J.M.] was unconscious and/or physically eron’s age is not specified in the opinion. His persecution within the meaning of the INA.” unable to resist,” and that on the same occasion victim was 4 years old. The court also observed that the Zambian gov- Mathonican and J.M. engaged in mutual oral Writing for the panel, Justice Richli found ernment had established a national AIDS pro- sex. that defense counsel had not objected at trial to gram in 1986, had worked to raised awareness The first specification sounds stranger every the HIV testing ordering, but the trial judge did about the illness, and was not responsible for time one contemplates it. The opinion says not a make a specific factual finding on the rec- any private or social stigma that HIV+ Zambi- Lesbian/Gay Law Notes June 2006 119 ans might encounter. Sichone had not shown “The discovery now propounded to defendants Barnett v. YMCA of Delaware Central Branch that the Zambian government engaged in offi- is narrowly tailored to the issue of qualified im- Member, LLC, 2006 WL 1303249 (Del. Super., cial persecution of HIV+ people. munity,” she wrote. “The discovery requests New Castle Co., May 10, 2006) (not reported in U.S. — Federal — Arkansas — Strange as it specifically focus on the potential risks associ- A.2d). may seem as we mark the 25th anniversary of ated with the HIV virus and AIDS in the prison Texas — The Texas Court of Appeals in Fort the AIDS epidemic and after more than two community and the safeguards the prison offi- Worth affirmed a jury conviction of Jose Luis decades of AIDS-related litigation, U.S. Magis- cials have taken to reduce the risk of spreading Calvo, an HIV+ man, on charges of aggravated trate Judge John F. Forster, Jr., concluded, in a the disease. In addition, the discovery requests sexual assault. Calvo v. State of Texas, 2006 WL proposed disposition that was adopted and ap- address the defendants’ knowledge regarding 1174211 (May 4, 2006) (not reported in proved by District Judge James M. Moody (E.D. the risk of harm of which plaintiff complains, an S.W.3d). Calvo argued on appeal that the trial Ark.) that it is not yet sufficiently well estab- inquiry essential to the qualified immunity court erred in allowing a nurse to testify on lished that prisoners have a privacy interest in analysis. Plaintiff complains that his housing medical issues concerning HIV without quali- information about their HIV status to eliminate and living conditions posed a risk to his health fying her as an expert witness. The court agreed qualified immunity for prison officials charged and safety, and that defendants were aware of but found the error harmless in the circum- with having improperly disclosed such infor- this risk, and ignored it. The requested discov- stances, finding that in light of the overall evi- mation about an inmate. Leher v. Bailey, 2006 ery addresses the very essence of plaintiff’s dence presented to the jury, omission of the WL 1307658. Although there are 2nd and 3rd claims.” purported expert’s testimony would not have Circuit decisions that clearly hold that HIV- U.S. — Federal — Texas —InEarle v. Barn- produced a different result. A.S.L. related information is subject to constitutional hart, 2006 WL 1348317 (W.D. Texas, May 5, privacy protection, and Forsterduly notes them, 2006), U.S. Magistrate Andrew W. Austin rec- United Nations Reports on Status of the AIDS he wrote: “The undersigned has been unable to ommended dismissal of Timothy Earle’s claim Epidemic find any Eighth Circuit or United states su- that he was entitled to social security disability preme Court precedent that establishes that the benefits on account of his HIV status and re- The United Nations AIDS Program issued an right to confidentiality in HIV status in the lated disabling conditions, rejecting Earle’s annual report that seemed to provide both sol- prison context [sic]. Thus, it is with confidence various arguments about whether the record ace and alarm, depending upon who was inter- that the undersigned reaches the conclusion showed sufficient impairment to meet the preting it. The New York Times, which has al- that there was no clearly established right in rather stiff requirement of federal law that ways been a bit “off” on the AIDS epidemic, 2003 under the Fourteenth Amendment for an somebody be too incapacitated to engage in vir- ran a cheery headline about how the rate of new inmate not to have medical information, such as tually any gainful employment in order to be cases had declined in ten countries, so the epi- HIV status, disclosed by government actors re- eligible for benefits, again reiterating the point demic must have “peaked.” This was directly gardless of whether or not the actors made the that HIV+ status alone is certainly not suffi- refuted by quotes within the article from the re- disclosure on the basis of a legitimate penologi- cient to merit the award of disability benefits port and the head of the program, pointing out cal reason.” Forster recommended that claims under federal law. that in much of Africa and Asia the new cases against two prison employees thus should be Delaware — In an unusual case of first im- were still increasing, that prevention efforts and dismissed on grounds of qualified immunity. pression, New Castle County Superior Court medication were unevenly distributed, and that U.S. — Federal — Texas — U.S. Magistrate Judge Herlihy found a valid cause of action by 4.1 million people were newly infected and 2.8 Judge B. Janice Ellington denied a protective Jerry Barnett, a paint who was working on the million died from HIV-related causes in 2005, order to two prison officials who are sued by a exterior of the Central Branch of the YMCA the last year for which there is reasonably full prisoner claiming he is being subject to sub- when a deranged resident dumped a pail of data. In addition, news reports noted that sev- stantial risk of serious harm by being required urine on him from an upper floor window. There eral large countries with significant numbers of to share a cell with an HIV+ inmate and be was no information whether the resident was HIV cases, including the U.S., had failed to re- served food by HIV+ inmates. Cain v. HIV+. Concerned about possible HIV expo- spond to information gathering that would help TDCJ,CID, 2006 WL 1168946 (S.D. Tex., April sure, Barnett went to his doctor, who prescribed to track the effectiveness of prevention efforts. 27, 2006) (not officially published). The prison a prophylactic medication that allegedly But why should the Bush Administration sud- officials, Doug Dretke, director of the prison, caused Barnett weight loss, loss of appetite and denly prove competent in this area? In the U.S., and Dawn Smith, head of the prison food serv- sexual dysfunction. His resulting tort action AIDS activists in many cities held events to ices, have moved to dismiss on grounds of against the YMCA was sustained by the court. mark the 25th anniversary since the 1981 pub- qualified immunity, and objected to a list of dis- “As a general rulue,” wrote Herlihy, “Delaware lication by the Centers for Disease Control of covery requests by inmate Gerald Cain, seek- does not recognize a cause of action for mental the first official notice of the epidemic. A.S.L. ing a wide variety of HIV-related information anguish absent physical injury. Where, how- concerning the prison. Ellington concluded ever, the physical manifestations arising out of that the information sought was all germane to negligently caused emotional distress are more the issue of the qualified immunity motions. than transitory, there may be a cause of action.” PUBLICATIONS NOTED & ANNOUNCEMENTS

LGBT Legal Movement Job Announcements ability to address the needs of racial, ethnic and skills; and public speaking ability. New Eng- economic diversity in the LGBT community. land bar admission preferred, salary depending GLAD — Boston — Gay & Lesbian Advocates GLAD prefers five years of legal experience on experience, excellent benefits. Send re- & Defenders is seeking a full-time Attorney for and requires a commitment to equal justice un- sume, cover letter and writing sample to Gary litigation and appellate advocacy in state and der law. Other qualifications include: familiar- Buseck, Executive Director, GLAD, 30 Winter federal courts of the six New England states, ity with LGBT and HIV issues or a willingness St., Suite 800, Boston, MA 02108, or email to and is particularly interested in expanding its to learn; strong research, writing and analytical [email protected]. Applications will be con- 120 June 2006 Lesbian/Gay Law Notes sidered on a rolling basis until June 30 or until Crossley, Mary, Dimensions of Equality in Infanti, Anthony C., Homer Sacer, Homosex- the position is filled. GLAD is an equal oppor- Regulating Assisted Reproductive Technologies, ual: Some Thoughts on Waging Tax Guerilla tunity employer; people of color and people 9 J. Gender,Race & Justice 273 (Winter 2005). Warfare, 2 Unbound: Harvard Journal of the with disabilities, including HIV, are encour- Danay, Robert J., The Danger of Fighting Legal Left 27 (Spring 2006) (accessible at aged to apply. Monsters: Addressing the Hidden Harms of www.law.harvard.edu/students/orgs/un- Child Pornography Law, 11 Rev. Of Constitu- bound/). LESBIAN & GAY & RELATED LEGAL ISSUES: tional Studies 151 (2005). Jackson, Jeffrey D., The Modalities of the Davis, Christina, Domestic Partnerships: Ninth Amendment: Waysof Thinking About Un- Allan, James, and Grant Huscroft, Constitu- What the United States Should Learn From enumerated Rights Inspired by Philip Bobbitt’s tional Rights Coming Home to Roost? Rights France’s Experience, 24 Penn St. Int’l L. Rev. Constitutional Fate, 75 Miss. L.J. 495 (Winter Internationalism in American Courts, 43 San 683 (Winter 2006). 2006). Diego L. Rev. 1 (Feb-March 2006). Dodge, Jeffrey A., Same-Sex Marriage and Jacobi, Tonja, Sharing the Love: The Political Armstrong, Cory L., and Michelle R. Nelson, Divorce: A Proposal for Child Custody Media- Power of Remedial Delay in Same-Sex Mar- How Newspaper Sources Trigger Gender Stereo- tion, 44 Family Court Rev. 87 (Jan. 2006). riage Cases, 15 L. & Sexuality 11 (2006). types, 82 Journalism & Mass Communication Family Law Same-Sex Couples’ Parental Kar, Robin Bradley, The Deep Structure of Quarterly 820 (2006). Rights and Obligations California Supreme Law and Morality, 84 Texas L. Rev. 877 (March Arnold, Jennie G., United States v. Extreme Court Holds Child Support Provisions of Its Uni- 2006). Associates, Inc.: The Substantive Due Process form Parentage Act Applicable to Same-Sex Kim, Janine Young, Hate Crime Law and the Death of Obscenity Law, 74 U. Cin. L. Rev. 607 Couples Elisa V. V. Superior Court, 117 P.3d Limits of Inculpation, 84 Neb. L. Rev. 846 (Winter 2005). 660 (Cal. 2005), 119 Harv. L. Rev. 1614 (2006). Aveline, David, “Did I Have Blinders on or (March 2006). Kirby, Justice Michael (Australia Supreme What?” — Retrospective Sense Making by Par- Feldblum, Chai, The Right to Define One’s Court), International Law — The Impact on ents of Gay Sons Recalling Their Sons’ Earlier Own Concept of Existence: What Lawrence Can National Constitutions, 21 Amer. Univ. Int’l L. Years, 27 J. Fam. Issues 777, 2006 WLNR Mean for Intersex and Transgender People,7 Rev. 327 (2006). 9287622 (June 1, 2006). Georgetown J. Gender & L. 115 (2006). Kirshenbaum, Andrea Meryl, “Because of … Baird, Macavan, Equal Protection Individ- Foltz, Kathleen B., Two Steps Forward and Sex”: Rethinking the Protections Afforded Un- ual Autonomy Rights and Equality Under the One Step Back: The Pennsylvania Supreme der Title VII in the Post-Oncale World,69Al- Massachusetts Constitution Prohibit the Exclu- Court Dances Around Equal Rights for “Life bany L. Rev. 139 (2005). sion of Same-Sex Couples From Civil Marriage. Partners”, 15 Widener L. J. 409 (2006). Kendell, Kate, The Right to Marry and the Goodridge v. Department of Public Health, 798 Gill, Mary Ellen, Third Party Visitation in San FranciscoExperience, 44 FamilyCourt Rev. N.E.2d 941 (Mass. 2003), 36 Rutgers L.J. 1381 New York: Why the Current Standing Statute is No. 1, 33 (Jan. 2006). (Summer 2005). Failing Our Families, 56 Syracuse L. Rev. 481 Kirshenbaum, Andrea Meryl, “Because of … Balkin, Jack M., and Reva B. Siegel, Princi- (2006). Sex”: Rethinking the Protections Afforded Un- ples, Practices, and Social Movements, 154 Gipson, Heather S. Ingrum, “The Fight for der Title VII in the Post-Oncale World,69Al- Univ. Pa. L. Rev. 927 (April 2006). the Right to Fight”: Equal Protection & the bany L. Rev. 139 (2005). Benvenuto, Osmar J., Reevaluating the De- United States Military,74UMKCL.Rev.383 Knechtle, John C., When to Regulate Hate bate Surrounding the Supreme Court’s Use of (Winter 2005). Speech, 110 Penn St. L. Rev. 539 (Winter Foreign Precedent, 74 Fordham L. Rev. 2695 Goodman, Maxine D., Human Dignity in Su- 2006). (April 2006). preme Court Constitutional Jurisprudence,84 Koh, Harold Hongju, Standing Together,15 Bernfeld, Betsy A., Constitutional Law Free Neb. L. Rev. 740 (2006). L. & Sexuality 1 (2006) (Allies for Justice Speech and Sex on the Internet: Court Clips CO- Hanna, Fadi, Gay Self-Identification and the Award acceptance speech. Dean Koh of Yale PA’sWings, but Filtering May Still Fly, Ashcroft Right to Political Legibility, 2006 Wis. L. Rev. Law School was 2005 recipient of award jointly v. American Civil Liberties Union, 542 U.S. 75 (2006). given by NLGLA & and the ABA Section on In- 656 (2004), 6 Wyoming L. Rev. 223 (2006). Hay, Peter, Recognition of Same-Sex Legal dividual Rights and Responsibilities for non- Blake, Catherine, I Pronounce You Husband Relationships in the United States,54Am.J. gay contributors to the struggle for LGBT and Wife and Wife and Wife: The Utah Supreme Comp. L. 257 (Fall 2006). rights). Court’s Re-Affirmation of Anti-Polygamy Laws Hetzel-Gaynor, Jenni, What About the Chil- Koppelman, Andrew, Reading Lolita at in Utah v. Green, 7 J. L. & Family Studies 405 dren? The Fight for Homosexual Adoption After Guantanamo: Or, This Page Cannot Be Dis- (2005). Lawrence and Lofton, 51 Wayne L. Rev. 1271 played, Dissent (Spring 2006), at 64 (interest- Boland, James M., Constitutional Legiti- (Fall 2005). ing ruminations inspired by the Extreme Associ- macy and the Culture Wars:Rule of Law or Dic- Hoskinson, Tracy, Etsitty v. Utah Transit ates obscenity prosecution). tatorship of a Shifting Supreme Court Major- Authority: Transposing Transsexual Rights Un- Kreimer, Seth F., “Torture Lite,” “Full Bod- ity?, 36 Cumb. L. Rev. 245 (2006–2006). der Title VII, 15 L. & Sexuality 175 (2006). ied” Torture, and the Insulation of Legal Con- Cole, Daivd, The Idea of Humanity: Human Hunter, Nan D., Twenty-First Century Equal science, 1 J. Nat’l Security L. & Pol’y 187 Rights and Immigrants’ Rights, 37 Colum. Protection: Making Law in an Interregnum,7 (2005). Hum. Rts. L. Rev. 627 (Spring 2006). Georgetown J. Gender & L. 141 (2006). Larkin, Joseph O., The Wisdom of Solomon? Corn-Revere, Robert, Can Broadcast Inde- Hylton, Maria O’Brien, Constance Hiatt, Splitting the First Amendment Baby in Forum cency Regulations Be Extended to Cable Televi- Shannon Minter, and Teresa S. Collett, Same for Academic & Institutional Rights v. Rums- sion and Satellite Radio?, 30 S. Ill. Univ. L. J. Sex Marriage and Its Implications for Employee feld, 3 Georgetown J. L. & Pub. Pol’y 639 (Sum- 243 (Winter 2006). Benefits: Proceedings of the 2005 Meeting of the mer 2005) (permature commentary on Solomon Cotler,Hon. Irwin, Marriage in Canada Evo- Association of American Law Schools Sections Amendment dispute). lution or Revolution?, 44 FamilyCourt Rev. No. on Employee Benefits, and Sexual Orientation Mann, Rebecca, The Treatment of Transgen- 1, 60 (Jan. 2006). and Gender Identity Issues, 9 Employee Rts. & der Prisoners, Not Just an American Problem A Emp. Pol’y J. 499 (2005). Comparative Analysis of American, Australian, Lesbian/Gay Law Notes June 2006 121 and Canadian Prison Policies Concerning Pfitsch, Hollis V., Homosexuality in Asylum 21st Century, 19 Georgetown J. Legal Ethics the Treatment of Transgender Prisoners and a and Constitutional Law: Rhetoric of Acts and 405 (Spring 2006). “Universal” Recommendation to Improve Identity, 15 L. & Sexuality 59 (2006). Sirola, Krista, Are You My Mother? Defend- Treatment, 15 L. & Sexuality 91 (2006). Protecting Speech v. Protecting Children: An ing the Rights of Intended Parents in Gesta- Manternach, Maggie, Where Is My Other Examination of the Judicial Refusal to Allow tional Surrogacy Arrangements in Pennsylva- Mommy?: Applying the Presumed FatherProvi- Legislative Action in the Realm of Minors and nia, 14 Am. Univ. J. Gender, Social Pol’y & L. sion of the Uniform Parentage Act to Recognize Internet Pornography,57S.C.L.Rev.489 131 (2006). the Rights of Lesbian Mothers and Their Chil- (Spring 2006). Staszewski, Glen, The Bait-and-Switch in dren, 9 J. Gender, Race & Justice 385 (Winter Ramachandran, Gowri, Intersectionality as Direct Democracy, 2006 Wis. L. Rev. 17 (2006) 2005). “Catch 22”: Why Identity Performance De- (commentary on shortcomings of the initiative Maurer, Elizabeth L., Errors That Won’t Hap- mands are Neither Hamrless Nor Reasonable, process, using anti-same-sex marriage amend- pen Twice: A Constitutional Glance at a Pro- 69 Albany L. Rev. 299 (2005). ments as prime example). posed Texas Statute That Will Ban Homosexuals Recent Cases, Equal Protection Sexual Ori- Stopler, Gila, Gender Construction and the From Foster Parent Eligibility, 5 Appalachian J. entation Kansas supreme Court Invalidates Limits of Liberal Equality, 15 Texas J. Women& L. 171 (Spring 2006). Unequal Punishment for Homosexual and Het- L. 43 (Fall 2005). Mazur, Diane H., A Blueprint for Law School erosexual TeenageSex Offenders. State v. Limon, Storrow, Richard F., Judicial Discretion and Engagement With the Military, 1 J. Nat’l Secu- 122 P.3d 22 (Kan. 2005), 119 Harv. L. Rev. the Disappearing Distinction Between Will In- rity L. & Pol’y 473 (2005). 2276 (May 2006). terpretation and Construction, 56 Case Western McReynolds, Anjuli Willis, What Interna- Reid, Eric, Assessing and Responding to Reserve L. Rev. 65 (Fall 2005). tional Experience Can Tell U.S. Courts About Same-Sex “Marriage” in Light of Natural Law, Tuskey, John, Do As We Say and Not (Neces- Same-Sex Marriage, 53 UCLA L. Rev. 1073 3 Georgetown J. L. & Pub. Pol’y 5223 (Summer sarily) As We Do: The Constitution, Federalism, (April 2006). 2005). and the Supreme Court’s Exercise of Judicial Merin, Yuval, The Right to Family Life and Reuveni, Erez, On Boy Scouts and Anti- Power, 34 Cap. U. L. Rev. 153 (Fall 2005). Civil Marriage Under International Law and Its Discrimination Law: The Associational Rights Vargas, Sylvia R. Lazos, “Kulturkampf[s]” or Implementation in the State of Israel, 28 Boston of Quasi-Religious Organizations, 86 Boston “Fit[s] of Spite”?: Taking the Academic Culture Coll. Int’l & Comp. L. Rev. 79 (Winter 2005). Univ. L. Rev. 109 (Feb. 2006). Wars Seriously, 35 Seton Hall L. Rev. 1309 Meyerson, Michael I., The Irrational Su- Riggle, Ellen D.B., Sharon S. Rostosky, and (2005). preme Court, 84 Neb. L. Rev. 895 (2006). Robert A. Prather, Advance Planning by Volokh, Eugene, Parent-Child Speech and Morgan, Deborah H., Not Gay Enough for the Same-Sex Couples, 27 J. Fam.Issues 758, 2006 Child Custody Speech Restrictions,81N.Y.U.L. Government: Racial and Sexual Stereotypes in WLNR 9287621 (June 1, 2006). Rev. 631 (May 2006) (argues that 1st Amend- Sexual Orientation Asylum Cases,15L.& Roesch, Benjamin J., Crowd Control: The ment analysis applies to court restrictions on Sexuality 135 (2006) (NLGLA Michael Green- Majoritarian Court and the Reflection of Public parental speech in custody and visitation berg Writing Competition Winner). Opinion in Doctrine, 39 Suffolk U. L. Rev. 379 cases; especially noting restrictions on gay par- Neacsu, Dana, The Wrongful Rejection of Big (2006). ents telling their children about their sexuality Theory (Marxism) by Feminism and Queer The- Rosato, Jennifer L., Children of Same-Sex or partners). ory: A Brief Debate, 34 Cap. U. L. Rev. 125 (Fall Parents Deserve the Security Blanket of the Par- Wardle, Lynn D., Autonomy, Protection, and 2005). entage Presumption, 44 Family Court Rev. No. Incremental Development in Family Law; A Re- Norton, Laura H., Neutering the Transgen- 1, 74 (Jan. 2006). view of Family Law in America, by Sanford N. dered: Human Rights and Japan’s Law No. Rosen, Mark D., Why the Defense of Marriage Katz, 39 Fam. L. Q. 805 (Fall 2005). 111, 7 Georgetown J. Gender & L. 187 (2006). Act is Not (Yet?) Unconstitutional: Lawrence, Wardle, Lynn D., The “End” of Marriage,44 O’Connell, Annie, “Legal Impediments to Full Faith and Credit, and the Many Societal Family Court Rev. No. 1, 45 (Jan. 2006). Marriage”: Massachusetts’ Marriage Evasion Actors That Determine What the Constitution Weber, Sarah A., Dismantling the Dictated Statutes, Same-Sex Marriage, and Privileges Requires, 90 Minn. L. Rev. 915 (April 2006). Moral Code: Modifying Louisiana’s In Vitro and Immunities Under the Untied States Consti- Saunders, Cheryl, The Use and Misuse of Fertilization Statutes to Protect Patients’ Pro- tution, 44 Brandeis L. J. 509 (2006). Comparative Constitutional Law, 13 Ind. J. creative Liberty, 51 Loyola L. Rev. 549 (Fall Orman, Sarah, “Being Gay in Lubbock:” The Global Legal Stud. 37 (Winter 2006). 2005). Equal Access Act in Caudillo, 17 Hastings Schwartz, Lara, & Ithti Toy Ulit & Deborah Weisburd,A. Mark, Using International Law Women’s L.J. 227 (Summer 2006). Morgan, Straight Talk About Hate Crimes Bills: to Interpret National Constitutions Conceptual Overgaard, Angel M., Where Does Forum for Anti-Gay, Anti-Transgender Bias Stalls Federal Problems: Reflections on Justice Kirby’s Advo- Academic and Institutional Rights v. Rumsfeld Hate Crimes Legislation, 7 Georgetown J. Gen- cacy of International Law in Domestic Constitu- Leave Military Recruiting Efforts?, 53 Buffalo der & L. 171 (2006). tional Jurisprudence, 21 Amer. Univ. Int’l L. L. Rev. 1313 (Fall 2005) (premature commen- Segall, Eric J., Internet Indecency and Mi- Rev. 365 (2006). tary on Solomon Amendment case). nors: The Case for Parental and School Respon- Wendel, Peter, Inheritance rights and the Parshall, Lisa K., Redefining Due Process sibility not Congressional Regulation, 110 Penn Step-Partner Adoption Paradigm: Shades of the Analysis: Justice Anthony M. Kennedy and the St. L. Rev. 615 (Winter 2006). Discrimination Against Illegitimate Children, Concept of Emergent Rights, 69 Albany L. Rev. Shany, Yuval, How Supreme is the Supreme 34 Hofstra L. Rev. 351 (Winter 2005). 237 (2005). Law of the Land? Comparative Analysis of the Williams, Laura L., The Unheard Victims of Perelman, Sabrina A., A Step in the Right Di- Influence of International Human Rights Trea- the Refusal to Legalize Same-Sex Marriage: The rection: How Kansas v. Limon Indicates a ties Upon the Interpretation of Constitutional Reluctance to Recognize Same-Sex Partners as Brighter future for Gay Rights Under Lawrence Texts by Domestic Courts, 31 Brook. J. Int’l L. Parents Instead of Strangers, 9 J. Gender, Race v. Texas, 7 Georgetown J. Gender & L. 217 341 (2006). & Justice 419 (Winter 2005). (2006). Simpson, Stephen W., From Lawyer-Spouse to Lawyer-Partner: Conflicts of Interest in the 122 June 2006 Lesbian/Gay Law Notes

Specially Noted: William Rubenstein, James Esseks, Darren Rendered Title I of the ADA Ineffective, 56 Case Hutchinson, Suzanne Goldberg, and Jon Western Reserve L. Rev. 1 (Fall 2005). The 15th volume of Law & Sexuality, published Davidson, moderated by Nan Hunter. There is Martin, Nicole K., Simple Inclusion or Ade- by students at Tulane Law School, has been also a keynote address by Mara Keisling, direc- quate Representation? Racial Disparities in published, with individual titles noted above tor of the National Center for Transgender HIV/AIDS Clinical Trials, 6 Rutgers Race & L. and below. Publication of this volume was Equality. Rev. 365 (2004). achieved through heroic efforts by the student Okie, Dr. Susan, Fighting HIV — Lessons staff, which was dispersed at the beginning of AIDS & RELATED LEGAL ISSUES: from Brazil, 354 New Eng. J. Med. 1977 (May the 2005–2006 school year as a result of the 11, 2006), 2006 WLNR 8077923. temporary closure of their law school due to Bromer,Zachary,Boer-Sedano v. Gonzales: The Segalla, Thomas F., and Carrie P.Parks, Mis- flooding in New Orleans resulting from Hurri- Increasing Influence of HIV/AIDS Status on representations in Insurance Applications: Dan- cane Katrina and faultily designed and main- Asylum Claims Based on Homosexual Identity, gers in Those Lies, 73 Defense Counsel J. 118 tained levees. Special congratulations are due 15 L. & Sexuality 163 (2006). (April 2006). to the Law & Sexuality staff, Theresa R. Crain, Cynthia A., The Struggle for Reason- Goulde, Editor-in-Chief, for their determina- able Accommodation for “Regarded As” Dis- EDITOR’S NOTE: tion and hard work in publishing on schedule. abled Individuals, 74 Univ. Cincinnati L. Rev. Georgetown Journal of Gender & the Law has 167 (Fall 2005). All points of view expressed in Lesbian/Gay published its 8th Annual Gender, Sexuality & Durojaye, Ebenezer,and Olabisi Ayankogbe, Law Notes are those of identified writers, and the Law Symposium, 7 Georgetown J. Gender & A Rights-Based Approach to Access to HIV are not official positions of the Lesbian & Gay L. No. 2 (2006). Individual articles are noted Treatment in Nigeria, 5 African Hum. Rts. L. J. Law Association of Greater New Yorkor the Le- above. In addition to the articles, there are tran- 287 (2005). GaL Foundation,Inc. All comments in Publica- scripts of two live symposium sessions: Panel Frazier, Nicholas R., In the Land Between tions Noted are attributable to the Editor.Corre- One: The Identity Victim — panelists Dean Two Maps: Perceived Disabilities, Reasonable spondence pertinent to issues covered in Spade, Lara Schwartz, Penelope Saunders and Accommodations, and Judicial Battles over the Lesbian/Gay Law Notes is welcome and will be Basil Lucas, moderated by Elizabeth Patterson; ADA, 62 Wash.& Lee L. Rev. 1759 (Fall2005). published subject to editing. Please address Panel Two: Living with Lawrence — panelists Leonard, James, The Equality Trap: How Re- correspondence to the Editor or send via e- Chai Feldblum, Kenji Yoshino, Pamela Karlan, liance on Traditional Civil Rights Concepts Has mail.