LESBIAN/ LAW NOTES April 2011 49

U.S. SUPREME COURT HOLDS FIRST AMENDMENT SHIELDS WESTBORO BAPTIST MILITARY FUNERAL PROTESTERS FROM TORT LIABILITY

A majority of the Supreme Court of the dismissed Snyder’s claims for defama- public matters was intended to mask an at- has held that members of tion and publicity given to private life, and tack on Snyder over a private matter.” Rob- the , who regu- held a trial on the remaining claims. A jury erts held that Westboro’s message “cannot larly protest military funerals holding found for Snyder on the remaining claims be restricted simply because it is upsetting signs bearing slogans expressing their dis- and held Westboro liable for $2.0 million or arouses contempt” and concluded that approval of America’s tolerance of homo- in compensatory damages and $8.0 mil- the jury verdict imposing tort liability on sexuality, such as “God Hates Fags,” “Fag lion in punitive damages; the trial court Westboro for intentional infliction of emo- Troops,” “Thank God for Dead Soldiers,” later remitted the punitive damages award tional distress must be set aside. and “America is Doomed,” was shielded by to $2.1 million. Westboro appealed to the Justice Roberts also rejected Snyder’s ar- the First Amendment from tort liability for 4th Circuit Court of Appeals, which held gument that he was “a member of a captive causing extreme emotional distress to the that Westboro was entirely shielded from audience at his son’s funeral,” stating that father of an war veteran when they liability by the First Amendment. Snyder “Westboro stayed well away from the me- protested nearby his son’s funeral, in Snyder petitioned the U.S. Supreme Court, which morial service. Snyder could see no more v. Phelps, 131 S.Ct. 1207 (March 2, 2011). granted certiorari and agreed to hear the than the tops of the signs when driving to Chief Justice , speaking case. the funeral… We decline to expand the for the Court, summarized the facts of the Justice Roberts stated that “whether the captive audience doctrine to the circum- case: Fred Phelps, founder of the West- First Amendment prohibits holding West- stances presented here.” In his concluding boro Baptist Church, (“Westboro”) and 6 boro liable for its speech in this case turns statement, Justice Roberts stated “our hold- other Westboro parishioners (all relatives largely on whether that speech is of pub- ing today is narrow… Speech is powerful. of Phelps), became aware of the death of lic or private concern,” stating that speech It can stir people to action, move them to Snyder’s son, Lance Corporal Matthew deals with matters of public concern when tears of both joy and sorrow, and — as it Snyder, who was killed in Iraq in the line it can be “fairly considered as relating to did here — inflict great pain. On the facts of duty. Westboro notified the local law en- any matter of political, social, or other con- before us, we cannot react to that pain by forcement authorities of their intention to cern to the community… or is a subject of punishing the speaker. As a Nation we have picket the funeral, and complied with po- legitimate news interest.” Justice Roberts chosen a different course — to protect even lice instructions in standing non-violently opined that the content of Westboro’s signs a hurtful speech on public issues to ensure at a distance of 1,000 feet from the church “plainly relates to broad issues of interest that we do not stifle public debate. That before and during the funeral while hold- to society at large, rather than matters of choice requires that we shield Westboro ing signs and singing hymns. Snyder and purely private concern” because while the from tort liability for its picketing in this the funeral procession passed within 200 messages “may fall short of refined social or case.” to 300 feet of the protestors, but Snyder political commentary, the issues they high- In a short concurrence, Justice Stephen saw only the top of the signs and only lat- light — the political and moral conduct of Breyer agreed with the Court and joined er learned of the messages printed on the the United States and its citizens, the fate its opinion, but wrote separately to state signs while watching the news. of our Nation, in the mili- that he believed that the First Amendment Snyder filed suit in federal court against tary, and scandals involving the Catholic analysis cannot stop after determining that Phelps, his family, and Westboro church clergy — are matters of public import.” the picketing “addressed matters of public under diversity jurisdiction, alleging defa- Justice Roberts rejected Snyder’s argu- concern,” suggesting that the Court’s opin- mation, publicity given to private life, in- ment that the church members mounted a ion does not leave a State “powerless to tentional infliction of emotional distress, personal attack on Snyder and his family, protect the individual against invasions of, intrusion upon seclusion, and civil conspir- stating that there was no pre-existing re- e.g., personal privacy, even in the most hor- acy, state law tort claims. The district court lationship between Westboro and Snyder rendous of such circumstances…, [that the] granted Westboro summary judgment and that “might suggest Westboro’s speech on Court has reviewed the underlying facts in

LESBIAN/GAY LAW NOTES April 2011

Editor: Prof. Arthur S. Leonard, New York Law School, 185 West Broadway, NY, NY 10013, 212-431-2156, fax 431-1804; e-mail: [email protected] or [email protected] Contributing Writers: Alan J. Jacobs, Esq., New York City; Bryan Johnson, Esq., New York City; Daniel Redman, Esq., ; Brad Snyder, Esq., New York City; Eric Wursthorn, Esq., New York City; Kelly Garner, NYLS ’12. Circulation: Administrator, LEGAL, 799 Broadway, Rm. 340, NYC 10003. 212-353-9118; e-mail: [email protected]. Inquire for rates. LeGaL Homepage: http://www.le-gal.org Law Notes on Internet: http://www.nyls.edu/jac ©2011 by the LeGaL Foundation of the LGBT Law Association of Greater New York ISSN 8755-9021 50 April 2011 LESBIAN/GAY LAW NOTES detail, as will sometimes prove necessary imity to the scene of a funeral should be or disability.” In seeking where First Amendment values and State regarded as a free-fire zone in which other- an injunction against the ban, the students protected… interests seriously conflict, wise actionable verbal attacks are shielded argued that the ban violated their First [and has found that since the] picketing from liability.” Amendment rights, and contended that the was lawful and in compliance with all po- Finally, Justice Alito noted that the statements did not otherwise fall under the lice directions,… could not be seen or heard Court’s brief discussion that the wounds in- “fighting words” doctrine (seeChaplinsky v. from the funeral,… [and because Snyder] flicted by picketing at funerals will be pre- New Hampshire, 315 US 568 [1942]). saw no more than the tops of the picket- vented or at least mitigated by future anti- Earlier in the litigation, the 7th Circuit ers’ signs” the First Amendment protects funeral-picketing laws “is no substitute for had affirmed the District Court’s prelimi- Westboro. the protection provided by the established nary injunction blocking the school district Justice dissented, stating [intentional infliction of emotional - dis from banning the slogan, in Nuxoll v. In- that “our profound national commitment tress] tort,” concluding that “[a]t funerals, dian Prairie School Dist. #204, 523 F3d 668 to free and open debate is not a license for the emotional well-being of bereaved rela- (2008). Writing on behalf of himself and the vicious verbal assault that occurred in tives is particularly vulnerable…. In order Judges Kanne and Rovner, Judge Richard this case.” Justice Alito disagreed with the to have a society in which public issues can Posner again essentially affirmed all of the majority’s holding, stating that the First be openly and vigorously debated, it is not touchstones in the court’s earlier decision. Amendment ensures that persons have necessary to allow the brutalization of in- Judge Posner reiterated that “Be Happy, “almost limitless opportunities to express nocent victims like petitioner. I therefore Not Gay” is not an instance of fighting their view,” but that “it does not follow, respectfully dissent.” Bryan C. Johnson words and that “[p]eople in our society do however, that they may intentionally inflict not have a legal right to prevent criticism of severe emotional injury on private persons LESBIAN/GAY LEGAL their beliefs or even their way of life,” citing at a time of intense emotional sensitivity by R.A.V. v. City of St. Paul, 505 US 377, 394 launching vicious verbal attacks that make NEWS AND NOTES (1992]. Ultimately, the only way that the no contribution to public debate.” Justice defendants could have permissibly banned Alito suggested that Westboro could have 7th Circuit Reaffirms the plaintiff ’s expression in this case was picketed at the United States Capital, the Constitutional Right of High if they could demonstrate that there was White House, the Supreme Court, the School Students to Wear Anti-Gay a “well-founded fear of disruption or in- Pentagon, or the over 5,600 military re- T-Shirts at School terference with the rights of others” he cruiting stations, 4,000,000 miles of public asserted, citing Sypniewsky v. Warren Hills roads, 20,000 public parks, or 19,000 Cath- On March 1, 2011, the U.S. Court of Ap- Regional Bd. Of Education, 307 F3d 243, olic churches in the United States rather peals for the 7th Circuit affirmed a district 264-65 (3d Cir 2002). than picket Snyder’s son’s funeral. Justice court grant of summary judgment against On this appeal, the defendants argued Alito noted that church members have pro- a school district, which awarded $25 in that the District Court’s grant of summary tested at nearly 600 military funerals and damages to each student plaintiff and per- judgment was premature. However, the 7th also picketed the funerals of police officers, manent enjoined the school from banning Circuit rejected this argument because the firefighters, the victims of natural disasters, students from displaying the message “Be defendants had failed to demonstrate a fac- accidents, and shocking crimes. Happy, Not Gay” on their t-shirts. Zamec- tual issue as to whether it had a reasonable Justice Alito stated that the majority nik v. Indian Prairie School District #204, belief that it faced a threat of substantial mischaracterized the picketing in this case, 2011 WL 692059. disruption. The evidence the school district and he pointed to Westboro signs stating The plaintiffs, Heidi Zamecnik and Al- presented fell into three categories: 1) past such things as “God Hates You,” “You’re exander Nuxoll, have long since graduated incidents of harassment of homosexual stu- Going to ,” and others which “would from the school in question. The underly- dents; 2) past incidents of harassment of have likely been interpreted as referring to ing incident arose when the plaintiffs de- Zamecnik; and 3) the report of an expert God’s judgment of the deceased,” as well cided to participate in a so-called “Day of which concluded that the slogan “Be Hap- as anti-homosexual signs that a reasonable Truth” one day after the “Day of Silence” py, Not Gay” was “particularly insidious.” bystander might believe suggest that the promoted by the Gay-Lesbian-Straight Judge Posner characterized the incidents deceased was gay. Education Network (GLSEN) to signify of harassment of gay students as “negligi- Justice Alito stated that he failed to see solidarity with gay students silenced by the ble”, noting that only a handful of incidents “why actionable speech should be immu- closet. During this Day of Truth, Zemec- had occurred in a school with thousands nized simply because it is interspersed with nik sought to demonstrate her disapproval of students. As for any harassment against speech that is protected,” that “one might of homosexuality by wearing a t-shirt that Zamecnik, such evidence was barred by well think that wounding statements ut- read “My Day of Silence, Straight Alliance” the trial court by the doctrine of “heckler’s tered in the heat of a private feud are less, on the front, and “Be Happy, Not Gay” on veto,” which essentially disallows reliance not more, blameworthy than similar state- the back. A school official objected to the upon disapproval of a message as grounds ments made as part of a cold and calculated t-shirt, blacked out the phrase “Not Gay,” for the ban of said message. The 7th Circuit strategy to slash a stranger as a means of at- and banned the slogan as a violation of a also observed that a substantial disruption tracting public attention,” and that “there is school rule forbidding derogatory com- didn’t result from the incident, noting that no reason why a public street in close prox- ments “that refer to race, ethnicity, gender, the worst thing that happened was that a LESBIAN/GAY LAW NOTES April 2011 51 water bottle was thrown and struck one of constitutionality of a law it has determined but that Congress may seek to intervene to Zamecnik’s friends during the 2007 Day of appropriate to enforce. However, the Court make that argument.) Another 9th Circuit Silence. is not able to reach these constitutional is- judge, Stephen Reinhardt, also sitting as a The last piece of evidence was an expert’s sues due to the unique procedural posture grievance administrator on a parallel ben- report by Stephen T. Russell. The 7th Cir- of this matter.” efits claim brought by another gay cuit essentially disregarded this report be- This case is an offshoot from the brief pe- employed by the federal courts in the 9th cause the main thrust of it, that the term riod during 2008 when same-sex marriages Circuit, ruled in In re Levenson, 587 F.3d “Be Happy, Not Gay” is “particularly insidi- could be contracted in . Karen 925 (9th Cir. 2009), unlike Judge Kozin- ous,” was not based upon Russell’s personal Golinski married her long-time same-sex ski, that Section 3 was unconstitutional, knowledge of the subject school district, partner, Amy Cunninghis, and then ap- but also indicated that the applicant would was lacking any evidence that the term plied to have Ms. Cunninghis covered by have to vindicate his claim in federal court. has any actual effect on gay students, and Golinski’s employer’s health insurance Judge White, denying Golinski’s mo- did not describe the methodology used to plan. Her employer, the 9th Circuit, ad- tion for preliminary injunction and grant- base a prediction of harm to gay students opted an Employment Dispute Resolution ing a motion to dismiss by the government, on particular “negative comments.” Since Plan (EDRP), and a non- pointed out that Judge Kozinski had not the report was based on mere conclusions policy that includes sex and sexual orien- ruled on the constitutionality of Section 3, without any indication of the facts or data tation. When the Administrative Office of and concluded (after ten months of pon- relied upon or proof that the report is the the Courts rejected Golinski’s application, dering on the pending motions) that Judge product of reliable principles and methods, she appealed within the Circuit’s EDRP, Kozinski, when sitting as an administrator it was “useless to the court.” represented by . Her appeal within the 9th Circuit, did not have the au- As for damages, the 7th Circuit noted landed before Chief Judge Alex Kozinski, thority to order OPM to disregard its obli- that the $25 award was justified. Zamec- sitting in his capacity as an administrator gation to enforce DOMA. nik’s shirt was defaced and Nuxoll’s desire rather than an Article III judge. Technically, Golinski was seeking a writ to wear the shirt was on multiple occasions In that capacity, Judge Kozinski ruled in of manadamus, a device by which the court was “thwarted by fear of punishment.” Eric In re Golinski, 587 F.3d 956 (9th Cir. 2009), would order a government official to take J. Wursthorn that it was possible to construe the applica- or refrain from taking an action. White ble insurance provisions in light of the Cir- noted that the standards for issuing such Federal Court Invites DOMA cuit’s non-discrimination policy to allow a writ are extremely high, requiring that it Challenge While Dismissing Golinski’s wife to enroll, and he issued an be very clear that the plaintiff is entitled to Spousal Benefits Case order to the Administrative Office to that what she is seeking and that the govern- effect. But the Office of Personnel Manage- ment actor’s resistance is clearly improper. U.S. District Judge Jeffrey S. White ment (OPM), an Executive Branch agency A federal court will not issue the writ to (N.D.Cal.) invited Lambda Legal to file that contracts with Blue Cross to provide compel an official to perform a discretion- an amended complaint in Golinski v. U.S. the benefits, instructed the Administrative ary act. In this case, until DOMA is actu- Office of Personnel Management, No. C 10- Office and Blue Cross to reject the appli- ally declared unconstitutional in a control- 00257 JSW (March 16), challenging the cation, taking the position that Section 3 ling appellate ruling, White found, it was constitutionality of Section 3 of the De- of DOMA applies and so Golinski’s wife not within Judge Kozinski’s power to order fense of Marriage Act, the provision upon cannot be treated as her spouse under any OPM to disregard it or fail to enforce it. which the defendant is relying in its refusal federal program. Since Golinski sought a writ to enforce to comply with an order by 9th Circuit The DOJ announcement issued on Feb- Kozinski’s order, rather than a determina- Judge Alex Kozinski that Karen Golinski, ruary 23 made the point that although tion by Judge White as to the constitution- a lawyer employed by the 9th Circuit, be DOJ considers Section 3 unconstitutional, ality of Section 3, that issue was not prop- allowed to enroll her wife in the health nonetheless all federal agencies are still erly before him, he concluded. benefits program provided for Circuit em- bound to enforce it unless Congress repeals White did not hide his own views about ployees. it or it is finally declared unconstitutional Section 3, however. “The Court has a- re Noting the recent announcement that by the courts. Although at least one fed- sponsibility to be clear and resolute in its President Obama and Attorney General eral trial judge, Joseph Tauro of the U.S. condemnation of a discriminatory rule of Holder have agreed that Section 3 (which District Court in Massachusetts, has de- law,” he wrote, “while maintaining its cir- provides that the federal government will clared it unconstitutional in Gill v. Office cumscribed, and therefore legitimate, au- not recognize marriages of same-sex cou- of Personnel Management, 699 F.Supp.2d thority. Both parties agree that Section 3 ples for any purpose) is unconstitutional, 374 (D.Mass. 2010) and Commonwealth of of DOMA as applied to legally married Judge White wrote, “The Court would, if it Massachusetts v. U.S. Department of Health same-sex couples fails to meet the height- could, address the constitutionality of both and Human Services, 699 F.Supp.2d 234 ened standard of scrutiny required to adju- the legislative decision to enact Section 3 (D.Mass. 2010), those cases are on ap- dicate laws targeting minority groups with of DOMA to unfairly restrict benefits and peal to the 1st Circuit. (Attorney General a history of discrimination and is therefore privileges to state-sanctioned same-sex Holder has notified the Circuit’s clerk that unconstitutional. However, the constitu- marriages or address the conflict regarding the Justice Department will not be arguing tionality of the application of Section 3 of the Executive’s decision not to defend the on appeal that Section 3 is constitutional, DOMA to the decision by the OPM to 52 April 2011 LESBIAN/GAY LAW NOTES restrict the provision of health insurance sex couples the right to marry violates the (Duane Gajewski and Douglas Benson, benefits to Plaintiff ’s wife is not directly 14th Amendment of the U.S. Constitu- Tom Trisko and John Rittman, and Jes- challenged in this case.” tion, dismissing arguments based on due sica Dykhuis and Lindzi Campbell), tried White concluded that if Golinski would process (fundamental right to marry) and to persuade Judge DuFresne that she could file an amended complaint raising the con- equal protection, and, in a footnote without ignore Baker, as this is a state constitutional stitutional issue, he could get to the merits. any substantive discussion, the 1st Amend- case, raising no federal claim, but she was Acting as an Article III judge, he would ment freedom of association and the 8th not convinced. She wrote that “unless and then have the authority to make a determi- Amendment ban on cruel and unusual until” the Minnesota Supreme Court over- nation of Golinski’s claim as to her wife’s punishment. rules Baker, “Same-sex marriage will not benefit entitlement and to award appropri- In those days, disappointed plaintiffs exist in this state.” After citing Baker, she ate relief. “Because the Court cannot find as whose federal constitutional claims were wrote, “This, of course, is binding precedent a matter of law that amendment would be rejected by a state’s highest court were on this Court, and this Court is not free to futile,” he wrote, “the Court grants Plaintiff entitled to appeal their case to the U.S. ignore it.” leave to amend to attempt to plead a claim Supreme Court. (These days, the U.S. The court approached the state/federal that the Court may legitimately address.” Supreme Court has “docket control” re- issues by acknowledging that state consti- White gave Lambda Legal until April 15 garding such cases and is not required to tutions may be construed to provide broad- to get the amended complaint on file, and decide them unless it agrees to grant a er protection of rights than the federal con- indicated that the government would then petition for review.) The Supreme Court stitution, and observed that the Minnesota have 20 days to respond. The ball is back in responded to the appeal by Richard John Supreme Court could decide to overrule Golinski’s court, as White concluded that “Jack” Baker and James McConnell by dis- Baker, but she insisted that until such over- if an amendment is not filed by then, this missing the appeal “for want of substantial ruling it was a binding precedent on the case is over. federal question.” That is, in 1971 the Su- trial court. She also insisted that plaintiffs In light of White’s comments, it appears preme Court did not think that the ques- had not shown that she had authority to that Golinski’s amended complaint would tion of same-sex marriage presented any provide broader constitutional protection receive prompt consideration and most sort of substantial federal issue that would than the Baker plaintiffs had received, and likely a favorable disposition. require it to call for full briefing, hold oral pointedly noted that the Baker court had Lambda Legal’s Jennifer C. Pizer and arguments, and write an opinion. not been sympathetic to the plaintiffs in Morrison & Foerster’s Rita Lin, James Mc- Ever since then, one of the arguments that case. She asserted that although the Guire, Gregory Dresser and Aaron Jones made by state defendants in federal same- “times have changed…. The law has not.” represent Golinski. A.S.L. sex marriage cases has been that there is no Of course, if one is referring to federal con- valid federal constitutional claim because stitutional law, she is plain wrong about Minnesota Same-Sex Marriage of Baker v. Nelson, which is, at least theo- that, since federal constitutional law on the Suit Dismissed retically, a U.S. Supreme Court ruling on rights of gay people has changed consider- the merits, even though the Court did not ably from 1971 to the present. Indeed, a se- State trial judges do not have the authority say anything beyond the curt language dis- ries of federal trial court decisions over the to overrule decisions by the highest court missing the appeal as quoted above. Plain- past year or so have marked a revolutionary in their state, so perhaps it is not too sur- tiffs have argued (successfully last summer change, as Attorney General Holder’s anal- prising that Hennepin County District in Perry v. Schwarzenegger, the Prop 8 case ysis in his letter to Speaker Boehner about Judge Mary DuFresne has dismissed a decided in the Northern District of Cali- DOMA well illustrates. lawsuit brought on behalf of three Min- fornia and now pending before the 9th Cir- Perhaps in the very broadest sense, one nesota same-sex couples seeking the right cuit), that Baker is no longer a controlling might argue that a trial judge in Minnesota to marry. The March 7 ruling in Benson v. federal constitutional precedent because may not rule in favor of a right for same-sex Alverson, Case File No. 27 CV 10-11697 intervening U.S. Supreme Court decisions couples to marry when the state’s highest (Minn. 4th Jud. Dist.), relies on the first ap- in cases such as Romer v. Evans and Law- court previously ruled against such a right, pellate ruling on same-sex marriage in the rence v. have totally changed the legal albeit forty years ago. But this seems like United States, the Minnesota Supreme landscape for due process and equal protec- a rather odd result. The complaint filed Court’s 1971 decision in Baker v. Nelson, tion claims by gay litigants. by the plaintiffs raised only state consti- 291 Minn. 310, 191 N.W.2d 185. On the Most recently, for example, Attorney tutional claims, not federal constitutional other hand, Judge DuFresne’s reliance on General Eric Holder has apparently aban- claims, whereas the complaint filed in the Baker seems strange in this context, since doned the precedent of Baker in his de- Baker case argued, in the alternative, that the plaintiffs in the new case relied solely termination that Section 3 of the Defense the state marriage law as then written could on the state constitution, whereas the Baker of Marriage Act, which withholds federal be construed to allow same-sex marriage, or case was litigated on federal constitutional recognition for same-sex marriages lawfully that the plaintiffs in that case had a federal grounds. But the court insisted that Baker contracted in those states that allow them, constitutional right to marry. Thus, unless set the parameters for analysis under the violates the equal protection requirement there have been other rulings on these is- state constitution on this subject. of the 5th Amendment. sues by the Minnesota Supreme Court In Baker, the Minnesota Supreme Court Attorney Peter Nickitas, who repre- since then, it is hard to understand why rejected the argument that denying same- sents the plaintiffs in the Minnesota case Judge DuFresne would conclude that Baker LESBIAN/GAY LAW NOTES April 2011 53 precludes a state constitutional challenge to among other things, leading to her termi- jurisdiction, arguing that these discrimina- the Minnesota statute forbidding same-sex nation. United argued that because Rabe tion laws did not apply to a foreign worker marriages. was a foreign national working for United working abroad. In the complaint, plaintiffs raised claims abroad, American courts lacked subject The district court held with United, under the following Minnesota consti- matter jurisdiction over her discrimination reasoning that it lacked subject matter ju- tutional provisions: Article I, Section 7 claims. Judge Hamilton, writing for the risdiction because U.S. employment dis- (due process); Article IV, Section 17 (state Seventh Circuit Court of Appeals, reject- crimination laws do not apply to Rabe as DOMA enacted in violation of “single sub- ed this argument and reversed the district she did not spend sufficient time work- ject” rule in constitution); Article I, Section court’s ruling that it lacked subject matter ing in the U.S to meet the Title VII and 2 (equal protection); Article I, Section 16 jurisdiction because Rabe was a foreign na- ADEA domestic-work requirement. But (freedom of conscience/religious freedom); tional working abroad. the Seventh Circuit rejected this line of ar- Article I, Sections 1, 2 & 16 (freedom of In its decision, the Seventh Circuit held gument. As to subject matter jurisdiction, association). Judge DuFresne was equally that because the choice-of-law provision the court held that “an employee’s status as dismissive of their association and religious in Rabe’s contract with United designated a foreign worker may prevent her success freedom claims. She observed that there is United States and state law as the on the merits in a Title VII or ADEA case, no express protection for freedom of as- law to be used in deciding disputes, that but it is not a barrier to the court’s power sociation in the Minnesota constitution, law could be applied through a breach of to adjudicate her case.” ThecCourt drew and insisted that denying civil marriage to contract or promissory estoppel theory, a comparison to a Supreme Court ruling same-sex couples was not an abridgement even though the relevant statutes by their that held that the closely related question of religious freedom. She observed that own terms arguably did not apply. Thus, whether an employer has enough employ- religious institutions were free to conduct the case was remanded for further proceed- ees to be subject to Title VII is a matter religious marriage ceremonies for same-sex ings on the merits and re-characterized as for the merits rather than a requirement for couples, who could attach spiritual signifi- claims for breach of contract and/or prom- subject matter jurisdiction. cance to such ceremonies, but the state’s issory estoppel with the substantive prin- As to the dismissal, the court indicated concern was entirely with the civil side of ciples of the statutes absorbed as part of the that the primary question argued before marriage. contract. the district court was on the merits, i.e., The trial court is merely the first stop in a Laurence Rabe, a French citizen and a did Rabe spend sufficient time in the U.S. same-sex marriage case in any event, so the lesbian, worked as a United flight attendant to qualify as a person working in the U.S. plaintiffs were always going to have to take from 1993 until 2008 from the Paris and under Title VII and the ADEA? As such, their case to the state Supreme Court to Hong Kong hubs. Rabe asserts that ninety United’s motion should have been treated achieve a final victory. In that sense, a loss percent of her flights were to or from U.S. as a motion to dismiss for failure to state in the trial court is no big deal, but Judge destinations until her voluntary furlough a claim. In that respect, the court did not DuFresne seems to be out of step with the in 2002. After being recalled in 2005, she disagree with the district court’s conclusion trend over the past few months towards only worked flights to or from Asian des- that the time spent was insufficient. How- support for same-sex marriage rights, and tinations. Rabe had an individual employ- ever, the court concluded that the district her reliance on Baker as a state constitu- ment contract with United. The contract’s court should have denied United’s motion tional precedent is odd. choice-of-law clause specified that “the to dismiss Rabe’s complaint on the basis of Plaintiff Doug Benson, who is executive terms and conditions” of employment the attached employment contract. director of Marry Me Minnesota, a non- would “be governed exclusively by ap- As to the contract’s choice- of-law profit group that was formed to bring this plicable United States law,” including the clause, United argued that even though the case, told the newspaper that an appeal will Railway Labor Act and the Association of district court was free to apply Title VII, the be filed promptly. The plaintiffs have called Flight Attendant’s collective bargaining ADEA, and the IHRA, those statutes are on Minnesota Governor Mark Dayton and agreement. The contract also had a choice- not applicable to a non-citizen who worked Attorney General Lori Swanson to disavow of-forum clause, which provided that only outside the U.S. The court of appeals rea- defense of the state’s marriage law, citing courts of the United States and Illinois soned that, under United’s theory, Rabe the recent action by U.S. Attorney General could hear disputes related to the contract. would not be protected by the employment Holder, but no response to that call has yet Rabe’s lawsuit alleged that United dis- discrimination laws of any country. The been reported. A.S.L. criminated against her on the basis of her court concluded that the most reasonable national origin, age, and sexual orientation interpretation of Rabe’s employment con- French Lesbian Flight Attendant in violation of Title VII of the Civil Rights tract was that United agreed to the applica- Benefits from U.S. Law in Act of 1964, the Age Discrimination in tion of U.S. law notwithstanding provisions Discrimination Suit Against Employment Act, and the Illinois Human that might exclude her. United Rights Act. United fired Rabe at the end of Appellant Laurence H. Rabe appeared an investigation for alleged misuse of travel pro se. Gary S. Kaplan of Seyfarth Shaw In Rabe v. United Air Lines, Inc., 2011 WL vouchers, which she claims was a pretext LLP represented United Air Lines, Inc. 677946 (7th Cir. Feb 28, 2011), the plaintiff for the supervisor to fire her because she is a Bill Stewart (NCLR Law Clerk) & Daniel flight attendant sued United Air Lines for lesbian, among other things. United moved Redman discrimination based on sexual orientation, to dismiss the suit for lack of subject matter 54 April 2011 LESBIAN/GAY LAW NOTES

Unregistered Domestic Partner Constitutional scheme . . . .” Roberts,, 468 lina’s decision granting summary judgment Can Seek Compensation for U.S. 609 (1984). to the employer, Cromer Food Services Negligent Killing of Partner by The district court noted that such rela- (CFS). The circuit court found that the em- Police tionships are of great importance, and that ployee, Homer Ray Howard, did establish Fresno County cannot merely cite the fact that a reasonable person could conclude A federal district court has ruled that a that Angel and Blanca were unmarried that CFS had “actual or constructive notice person who can prove a marriage-like re- and unregistered, and expect the action of the harassment and failed to take any lationship to another person is entitled to to be thrown out under FRCP 12(f ). The corrective action” to stop the harassment. sue police officers, under federal civil rights County would have to challenge the dura- In July 2006, Howard began working for laws, for killing a domestic partner, even if tion and quality of the relationship as an CFS, a company that stocks vending ma- unmarried and not registered as a domestic “insufficient intimate association,” and such chines. At the time, the company’s largest partner. This federal right supersedes a state a challenge cannot be ruled upon as a mat- client was Greenville Hospital (Greenville). statute that requires domestic partner reg- ter of law, said the court Howard was assigned to work at Greenville istration as a prerequisite to a state wrong- In this instance, Blanca proved to the and was given the second shift, from 3 p.m. ful death action. Estate of Mendoza-Saravia court that her relationship with Angel was to 11 p.m., in order to accommodate his v. Fresno County Sheriff ’s Dep’t, 2011 WL an intimate one. The court listed relevant childcare duties as he is responsible for tak- 720061 (E.D. Cal. Feb. 22, 2011). factors in determining intimate relation- ing his child to hospital appointments dur- Fresno County Police shot a “bean bag ships, such as: deep attachment and com- ing the day. round,” intended to be nonlethal, but they mitment; sharing each others’ thoughts, Howard began to experience sexual ha- wound up killing Angel Mendoza-Saravia. lives and experiences; existence of relatively rassment at Greenville in December 2006, Blanca Estela Castro, Angel’s unmarried few such relationships in one’s lifetime; after a note was left by one of Howard’s domestic partner, sued for damages. Un- long duration; involvement in procreation; co-workers in the Greenville cafeteria stat- der California law, a wrongful death ac- cohabitation; and raising of children. ing that Howard was gay. Two members of tion is not available unless one is either a The district court cited an unpublished Greenville’s housekeeping staff, John Mills spouse or a registered domestic partner. Ninth Circuit case that recognized that “a and Andre McDowell, then began calling Cal. Code of Civil Procedure § 377.60(a) state violates the 14th Amendment when it him ‘Homo Howard.’ The two men waited and (f )(1). Blanca was neither, even though seeks to interfere with the social relation- for Howard by the vending machines at the she lived with Angel and, 3 months after ship of two or more people.” Bevelhymer v. start of his shift and followed him through- his death, gave birth to their child, Angie. Clark County, 53 F.3d 337 (9th Cir.1995) out the hospital as he worked, making Since a wrongful death action was barred, (unpublished). The 14th Amendment guar- sexual gestures and graphically describing she sued instead for deprivation of her “fed- antees the right to intimate association, and oral sex. Both Mills and McDowell deny eral liberty interest in and right of familial this right supersedes the denial of the right harassing Howard. association.” Fresno County moved, under to bring a wrongful death action under Right after the first instance of harass- FRCP 12(f ), to dismiss the action based on California law, the court held. ment, Howard reported the behavior to Blanca’s having no “essential or important Under the federal civil rights statutes, both his supervisor, Gregg Adams, and his relationship” to the decedent. 42 U.S.C. § 1983, compensation is avail- direct supervisor, Brian Tyner. Adams re- The district court noted that the U.S. able for deprivation of federal rights. The sponded to the complaint by telling How- Supreme Court has recognized that cer- court therefore held that Blanca has a con- ard that the men were “only joking” and tain kinds of personal bonds and intimate stitutionally protected interest in Angel’s that Howard should “let it go.” Adams did conduct are protected by the substantive companionship which must be recognized; not ask Howard for any further detail about due process component of the due process thus, Blanca has standing to assert a civil the harassment and took no action to stop clause. Roberts v. United States Jaycees, 468 rights claim for deprivation of intimate fa- the harassment. Tyner had a similar reac- U.S. 609 (1984); Lawrence v. Texas, 539 milial association. Alan J. Jacobs tion. He reiterated Adams’ sentiment that U.S. 558 (2003). the Greenville employees were only joking The right of intimate association exists 4th Circuit Finds Employer May Be with Howard and that Howard should not in unmarried relationships as well as mar- Liable for Customer’s Homophobic “take things too seriously because ‘faggots ried ones, such that the Seventh Circuit re- Sexual Harassment of Employee are ignorant, retarded people, and Homer, versed a decision by a district court holding I know you’re not retarded.’” Tyner also ig- that unmarried domestic partners have no In a case of first impression in the Fourth nored Howard’s request to switch his route standing to challenge a police search that Circuit, the court of appeals held that an so that he would no longer have to work at intruded on their privacy. Christensen v. employer is liable under Title VII of the Greenville. When Tyner and Adams failed County of Boone, Illinois, 483 F.3d 454 (7th Civil Rights Act of 1964 for sexual harass- to take any action to stop the harassment or Cir.2007). “[T] the choices to enter into ment conducted by a non-employee against give Howard another shift or route, How- and maintain certain intimate human re- an employee. EEOC v. Cromer Food Servic- ard reported the problem to another super- lationships must be secured against undue es, Inc., 2011 WL 733814 (4th Cir., March visor, Gary Roper. Roper expressed regret intrusion by the State because of the role 3, 2011). In the opinion written by Circuit at the way Adams handled the problem, of such relationships in safeguarding the Judge Gregory, the court reversed and re- but stated that as Howard’s supervisor “had individual freedom that is central to our manded the District Court of South Caro- LESBIAN/GAY LAW NOTES April 2011 55 already dealt with” the problem, he could claim of sexual harassment. This conclu- the EEOC and in turn Howard. Follow- not take any action. sion appears to be based largely on one of ing this reading of the facts, the court held The harassment continued into -Janu Howard’s responses during his deposition Howard’s testimony to be credible. How- ary. At this point, Howard reported the testimony. When asked whether he gave ard’s testimony indicates that he was never harassment to the son of the chairman of Adams, or any other CFS employee, de- afforded any opportunity to give CFS the the Board of Directors, Chet Cromer, who tails of the harassment, Howard answered names of his harassers or even more details is also himself a manager at CFS. Chet “no.” The District Court interpreted this re- of the harassment. Every time he tried to reported the problem to his father, C.T. sponse as meaning that CFS never received report the problem, he was ignored or told Cromer, and arranged a meeting between full knowledge of the extent of the harass- to stop taking jokes so seriously, and no one his father and Howard. However, during ment, and therefore could not be found li- at CFS ever asked for more information. the meeting, C.T. did not allow Howard to able for the harassment. In addition, CFS The court also asserts that, even if CFS had say anything, but rather spent the meeting asserted that Howard did not follow the asked Howard to give names and he had “rambl[ing]” about how Howard’s com- company’s anti-harassment policy which refused, as his employer, CFS had a duty plaint would ruin the company. Despite his requires an employee to report any harass- to conduct a follow-up investigation. In apparent concern, at least for the company’s ment directly to the president of CFS, and fact, in the past when other CFS employees reputation, C.T. took no action to stop the therefore CFS was never properly informed complained of problems with Greenville harassment, and when Howard approached of the harassment. employees, CFS conducted investigations him again later in the month telling him To establish a sexual harassment claim, and addressed the concerns. These previous that the harassment was increasing, C.T. an employee “must establish four elements: actions indicate that CFS was fully aware stated that CFS is not responsible for the (1) the harassment was unwelcome; (2) was of its responsibilities to conduct inquiries actions of non-employees. based on sex; (3) was sufficiently severe or into possible harassment of an employee by Frustrated with CFS’s inaction, How- pervasive to alter conditions of employ- a non-employee. ard reported the harassment to Greenville’s ment and create an abusive atmosphere; As to CFS’s contention that Howard did Human Resources Department, but noth- and (4) was imputable to the employer.” not follow the procedures for reporting sex- ing came of the report. He also reported As the issue here is whether CFS is liable ual harassment outlined in the company’s the problem to McDowell’s and Mills’ su- for the actions of non-employees, Circuit anti-harassment policy, the court refused to pervisor, Ronnie Galloway. After he spoke Judge Gregory focuses the opinion only on adopt the Eleventh Circuit’s finding that with Galloway, the harassment did stop for the fourth element. To answer this ques- failure by an employee to follow an em- two days, but then resumed just as before. tion, the Circuit Court applied the negli- ployer’s anti-harassment policy indicated Throughout this period, Howard asserts gence standard employed by other circuits that the employer was not on notice and that he continued to report the harassment in similar cases. Under this standard, if an therefore could not be held liable for the to Adams, although Adams contends that employer possesses “actual or constructive harassment. Madray v. Public Supermar- Howard only made one complaint in Feb- knowledge” of harassment by a non-em- kets, Inc., 208 P.3d 1290 (11th Cir. 2000). ruary of 2007 concerning only one instance ployee towards an employee and takes no In contrast, the Fourth Circuit previously of harassment. action to stop the harassment, then the em- rejected the argument that an employer After Adams’ continual refusal, accord- ployer can be held liable for the actions of can avoid liability for non-employee action ing to Howard, to take any action to stop the non-employees. by asserting a lack of notice in Ocheltree v. the harassment, Howard reported the situ- On the issue of whether or not CFS Scollon Products, Inc., 335 F.3d 325 (2003). ation to the Equal Employment Oppor- had knowledge of the problem, CFS ar- The court held in Ocheltree that - anem tunity Commission (EEOC). In response gued that Howard never provided the ployer can gain knowledge of harassment to the report filed by the EEOC, Howard company with details of the harassment, through imputation “if a ‘reasonable [per- was offered an early shift that would not re- such as the names of the alleged harassers. son], intent on complying with Title VII, quire him to work at Greenville. However, Without such information, CFS asserted, would have known about the harassment.’” the early shift was from 4 a.m. to 3 p.m., the company did not have “actual or con- Here, Howard’s repeated reports to vari- which conflicted with Howard’s childcare structive knowledge” of the situation. The ous CFS supervisors should have indicated responsibilities. The EEOC also contended Circuit Court rejected CFS’s contention to any reasonable person that some form that the new shift would have decreased that Howard failed to give the company of harassment was occurring. Addition- Howard’s pay while increasing the number any details of the harassment. Although ally, the court found CFS’s anti-harassment of hours he worked in a week. Howard de- Howard never gave CFS the names of his policy to be unreasonable, as it requires an clined the offered shift and was terminated harassers, he did attempt on numerous oc- employee not only to know who the presi- from his position because the alternate casions to report the problem to CFS and dent of the company is, but also to approach shift was a “take it or leave it” option and was dismissed every time. While CFS ar- that person, which could be intimidating to no other solutions were offered by CFS. gued that Howard only reported the ha- many employees. Importantly, the court In the suit filed by the EEOC against rassment a few times and never offered the notes that the policy also requires an em- CFS, the District Court granted CFS’s names of the alleged harassers even when ployee who gains knowledge of harassment motion for summary judgment based on given the opportunity, Judge Gregory states of another employee by a non-employee the determination that CFS never received that the facts must be read in a light most to report the harassment to the president, the requisite details to address Homer’s favorable to the non-movant, which here is which Adams failed to do. 56 April 2011 LESBIAN/GAY LAW NOTES

The court also found that CFS failed to defend its constitutionality in court cases, it appealed to the Circuit Courts of Appeal take appropriate steps to stop the harass- also stated that pursuant to the President’s such constitutional claims can be raised. ment. CFS made neither an attempt to order and the Department’s duty to “faith- Presumably the Justice Department will address the harassment itself nor to find fully execute the laws” the Administration now concede in those cases that Section 3 a reasonable means of removing Howard would continue to enforce Section 3 un- is unconstitutional; if the courts agree, they from the situation. The court found that til it was repealed or definitively declared should apply the normal rule that prevailed offering Howard a shift that Howard- in unconstitutional. That leaves interesting before DOMA was enacted and order that formed CFS he could not take due to prior questions about how such enforcement ICE recognized same-sex marriages that childcare obligations was not a reasonable will proceed, particularly in the context of were lawfully contracted. Of course, DOJ solution to the problem. Perhaps more im- concrete situations in which individuals is supposed to notify Congress when it will portantly, though, the court states that, in are being denied equitable treatment under concede the unconstitutionality of a statute general, the proposed remedy offered by federal law due to the failure to recognize in a pending court case, so Congress may CFS was simply unacceptable when one their marriages. find itself embroiled in numerous immigra- takes into consideration the months of ha- Immigration Equality, which litigates tion cases around the country attempting rassment Howard endured and the com- on behalf of same-sex couples seeking to defend DOMA in this context. plete disregard with which he was treated recognition of their marriages under U.S. Meanwhile, there was a brief period with by his superiors. immigration law, announced on March when it appeared that the Administration Circuit Judge Gregory concludes his 3 that it would file a lawsuit on behalf of might be willing more generally to avoid opinion by finding that Howard did estab- a group of same-sex couples challenging deporting same-sex spouses while pending lish a claim of unlawful retaliation based on the refusal of immigration authorities to DOMA litigation is resolved. At least, such his termination from CFS following his re- accord recognition to their marriages for was hinted at a meeting between immigra- fusal of the offered early shift. To establish a immigration purposes. Even before such a tion and administration officials successful claim of retaliation, an employee case can be filed, however, the Administra- late in March. However, after a few days must prove that he engaged in a protected tion’s position on constitutionality is prac- of suspense, Citizenship and Immigration action and that the employer acted adverse- tically implicated in pending proceedings. Services announced that they were bound ly against him because of that protected ac- MetroWeekly reported on March 9 that at- to enforce DOMA and to continue to re- tion. The court did not rule on Howard’s torney Lavi Soloway was able to secure the fuse recognizing same-sex marriages for unlawful retaliation claim, but found that release by Immigration and Customs En- immigration purposes. Thus, applications based upon the facts Howard presented, a forcement (ICE) officials of a man from El for green cards based on same-sex mar- reasonable jury could find CFS’s action to Salvador who is married to his U.S. citizen riages will continue to be denied for now. It be in retaliation for Howard reporting the same-sex partner, who had responded to an was uncertain how all this may eventually harassment to the EEOC. Not only did the order to report for deportation. Soloway play out, especially if Immigration Equal- offered shift conflict with prior Howard’s had filed a Motion for Emergency Stay of ity files its lawsuit and obtains preliminary familial responsibilities, but the EEOC Removal as well as a Motion to Reopen injunctive relief. also argued that Howard’s salary would de- Proceedings, accompanied by documenta- Is it possible that Congress will take crease if he accepted the new shift. It was tion of the marriage, seeking an order that the pragmatic route and amend or re- unclear, however, if Howard’s salary would the marriage be recognized in light of the peal Section 3, or more narrowly amends have actually decreased if he had taken the unconstitutionality of DOMA Section 3. relevant immigration law provisions? It new shift as both the EEOC and CFS cal- ICE responded by releasing the man un- seems unlikely, as long as the generally gay- culated his prior salary differently based der an Order of Supervision, which allows unfriendly Republican Party controls the on a question of whether or not his annual him to remain in the U.S. while the case is House of Representatives, but the hopes of bonus was figured in correctly. However, in pending, subject to reporting in personally thousands of bi-national couples hang on viewing these facts in “the light most favor- to ICE officials monthly and notifying ICE the outcome. A.S.L. able to Howard,” the court concluded that of any travel outside the states of , a reasonable jury could find that CFS acted or the District of Columbia for NY’s High Court Upholds Jury adversely towards Howard. Kelly Garner more than 48 hours. Also, Gay City News Verdict in Gay Retaliation Case reported on March 22 that an Immigration Against NYC Police Department How Will the Obama Judge in Manhattan had adjourned depor- Administration’s New Position tation proceedings for an Argentine lesbian The New York Court of Appeals has unani- on DOMA Affect Immigration spouse of an American who had married mously affirmed jury verdicts for two New Matters? last year in Connecticut. Soloway and his York City Police Department officers partner Noemi Masliah represent the les- who claimed that they suffered retalia- When the Justice Department announced bian couple in the New York case. tion for opposing discrimination against on February 23 that the Obama Admin- Although it is not within the power of another officer who was perceived asbe- istration had concluded that Section 3 of the Article I Immigration Judges or the ing gay. The jury had awarded Lori Al- the Defense of Marriage Act violates the Board of Immigration Appeals unilaterally bunio $579,728.83 and Thomas Connors federal equal protection rights of gay peo- to recognize same-sex marriages in light of $588,113.45, plus attorneys fees. The case ple and that the Administration would not DOMA Section 3, when their rulings are is Albunio v. City of New York, 2011 WL LESBIAN/GAY LAW NOTES April 2011 57

11577062011 N.Y. Slip Op. 02480 (March against NYPD and won a jury verdict of Sorrenti, she said he was the better can- 31, 2011). $491,706 plus legal fees that was upheld didate and she would recommend him Captain Albunio was commanding of- by the Appellate Division. Presumably the again. “While she did not say in so many ficer of the Youth Services section and Lt. City didn’t settle that case outright because words that Sorrenti was a discrimination Connors was operations coordinator of the the officers denied the discrimination alle- victim,” wrote Judge Smith, “a jury could section. Sergeant Robert Sorrenti had ap- gations, but the jury believed the testimony find that both Hall and Albunio knew that plied to transfer to the section, and Albunio of Albunio, Connors and Sorrenti.) he was, and that Albunio made clear her recommended him after interviewing him Connor’s act of filing the complaint disapproval of that discrimination by com- for a specific vacancy. The recommendation brought the matter back to Hall’s attention, municating to Hall, in substance, that she went to James Hall, commanding officer and soon Connors found himself in a bor- thought Hall’s treatment of Sorrenti was of Community Affairs, who decided to in- ing desk job after he resigned from Youth wrong. Bearing in mind the broad reading terview Sorrenti himself before approving Services, probably correctly perceiving that that we must give to the New York City the transfer. The job would involve working his position there was in danger with Al- Law, we find that Albunio with kids. Hall evidently perceived Sorrenti bunio’s removal. Albunio and Connors could be found to have ‘opposed’ the dis- to be gay and would not approve the trans- filed retaliation complaints, asserting they crimination against Sorrenti at the October fer. Based on the evidence presented to the suffered adverse consequences for opposing 31 meeting.” jury, it could have concluded that Hall be- discrimination against Sorrenti, and won Since nobody disputes that Albunio lieved that gay people as a class should not jury verdicts with substantial damage and ended up with a worse assignment patrol- be assigned to work with kids. Hall found fee awards. ling in the subway system after that meet- somebody else to fill the vacant position The Appellate Division affirmed the ing, the elements of a retaliation claim are in Youth Services, and told Albunio “that jury’s verdict in their favor, with one judge complete. there was something not right about that dissenting as to Albunio. The dissenter ac- Evidently, violating City law and sub- guy” and that he “found out some fucked cepted the City’s argument that Albunio jecting the NYPD to embarrassment and up shit about Sorrenti and ... wouldn’t want first opposed discrimination against- Sor more than $2 million in financial liability is him around children.” renti after the decision was made to relieve no barrier to advancement for a politically- At a later point, Hall called Connors her from Youth Services, but the majority connected police officer, because Hall has into his office and spoke angrily about Sor- accepted the argument that her assignment since been promoted to Chief of Patrol, the renti, using “many expletives,” speculating to a comparatively undesirable petition fol- second highest uniformed rank in the De- that there was something going on between lowed the meeting with Patrick and Hall. partment. A.S.L. Sorrenti and another male officer to whom Affirming the jury verdicts, the court of Sorrenti had loaned some money, and said appeals stressed that it was commanded by Armed Forces Appeal Court that he “wouldn’t be able to sleep at night New York City’s Local Civil Rights Res- Vacates and Remands Article 125 knowing that Sorrenti is going to be work- toration Act of 2005 to give a very broad Sodomy Conviction ing around kids.” Connors responded to construction to the City’s Human Rights these comments by saying that he thought Law in favor of discrimination plaintiffs, The U.S. Court of Appeals for the Armed Sorrenti “would be more than qualified to and thus the court could be liberal in inter- Forces vacated a guilty plea to a charge of work around kids.” preting the requirement that the plaintiffs sodomy under Article 125 of the Uniform In the fall of 2002 Albunio heard rumors have suffered retaliation for opposing dis- Code of Military Justice (UCMJ), finding that she was being transferred out of Youth crimination. The court found Connors’ case that the court martial trial judge did not Services and asked for a meeting with Dep- to be relatively easy, in any event, since he engage in the required colloquy with the uty Commissioner Frederick Patrick. Hall suffered adverse consequences after filing defendant necessary for an informed guilty was present at the meeting. When Albunio a discrimination complaint about the way plea. United States v. Hartman, 2011 WL asked why she was being relieved of her Sorrenti was treated by Hall. 904218 (March 15, 2011). As a result of Youth Services command, she was told that Albunio presented the harder case, as the guilty plea, Hartman was sentenced to she had used poor judgment in requesting the Appellate Division dissent indicated. a bad-conduct discharge following a reduc- personnel, giving Sorrenti as the primary Writing for the Court of Appeals, Judge tion in pay grade and a month in the brig. example. Albunio responded that “Sor- Robert Smith said that the record showed In 2004, this court issued its decision in renti was the better candidate” and that she no “opposition” by Albunio to the dis- United States v. Marcum, 60 M.J. 198, set- would recommend him again. She was told criminatory treatment suffered by Sorrenti ting out its analysis of the effect of Law- to find a different assignment and ended up prior to Albunio’s meeting with Hall and rence v. Texas, 539 U.S. 558 (2003), on the with something worse. Patrick concerning the rumors about her continued enforcement of the military sod- When Albunio told Connors, her sub- own transfer. Although Albunio had been omy law. In Lawrence, the U.S. Supreme ordinate, what had happened, he filed a displeased that Sorrenti didn’t get the job, Court held that the liberty interest protect- complaint with the police department’s she didn’t do anything affirmatively about ed by the 14th Amendment Due Process EEO office, alleging that Hall had- dis it that would constitute “opposition” to dis- Clause included the right of consenting criminated againt Sorrenti due to Sorrenti’s crimination. adults of the same-sex to engage in private, perceived sexual orientation. (Ultimately, In that meeting, however, when she non-commercial sexual activity. In Marcum, Sorrenti also filed a discrimination charge was criticized about having recommended the Armed Forces Court of Appeals estab- 58 April 2011 LESBIAN/GAY LAW NOTES lished a tripartite analytical framework for sodomy.” The judge did not question Ap- N.Y.) and various district and school of- analyzing sodomy charges against mili- pellant about whether he understood the ficials (including the school board) can tary personnel, acknowledging that the 5th legal significance of these factors “to the proceed on state and federal statutory and Amendment Due Process Clause applies distinction drawn in Lawrence and Marcum constitutional claims, finding that the com- in the military and thus that some conduct between constitutionally protected behav- plaint adequately places in issue whether covered by Article 125 might be consti- ior and criminal conduct.” the school’s failure to protect a gay student tutionally protected in light of Lawrence. Under these circumstances, the court from bullying and harassment and failure Under the Marcum framework, the court found that the Appellant was not in the po- to extend equal access to a proposed gay- first considers whether the nature of the sition to make a provident decision to plead straight alliance at the school violated the conduct would “bring it within the liberty guilty. As Chief Judge Effron explained for students’ legal rights. The ruling in Pratt identified by the Supreme Court.” If so, the the court: “The fundamental requirement v. Indian River Central School District, No. next question would be whether the con- of a plea inquiry… involves a dialogue in 7:09-CV-0411 (GTS/GHL) (N.D.N.Y., duct encompassed “any behavior of factors which the military judge poses questions March 29, 2011), denied the defendants’ identified by the Supreme Court as outside about the nature of the offense and the ac- motions for summary judgment, and left the analysis in Lawrence.” And, finally, the cused provides answers that describe his standing the bulk of plaintiffs’ legal claims court would have to consider whether there personal understanding of the criminal- for trial. were “additional factors relevant solely in ity of his or her conduct. A discussion be- In some ways this is a depressingly fa- the military environment that affect the tween trial counsel and the military judge miliar sort of case, as once again a group of nature and reach of the Lawrence liberty in- about legal theory and practice, at which school administrators and personnel have terest.” In subsequent cases, it has become the accused is a mere bystander, provides allegedly failed to rise to their responsibili- clear that under the third prong of the no substitute for the requisite interchange ties under the law to afford equal treatment analysis, crucial factors will be whether the between the military judge and the accused. on the basis of sexual orientation. Indeed, it defendant’s sex partner was also a member In the absence of a dialogue employing lay is rather astonishing, in light of the litiga- of the military covered by Article 125 and, terminology to establish an understanding tion record on this issue compiled in federal if so, of what rank and assignment relative by the accused as to the relationship be- courts around the nation over the past two to the defendant, as well as the location, tween the supplemental questions and the decades, that school officials and employees whether the participants in the sexual ac- issue of criminality, we cannot view Appel- anywhere in the country could have be- tivity were “on duty,” and how “private” the lant’s plea as provident.” The court autho- haved the way the defendants in this case activity was. rized a rehearing before a military judge. are charged with behaving during the rel- In this case, the defendant proposed to The court does not mention the recent evant period of 2003-2004. plead guilty. The military judge “asked Ap- enactment of the “Don’t Ask Don’t Tell Judge Suddaby decided not to describe pellant to explain in his own words why he Repeal Act of 2010,” which is currently in the factual allegations in detail in his opin- believed he was guilty of the offense. Ap- the stage of preparation for implementa- ion, noting that this was a pretrial ruling pellant responded by describing the nature tion of the repeal of the existing policy on mainly directed to the parties, whose fa- of the sexual conduct between himself and military service by gay personnel, anticipat- miliarity with the allegations could be pre- the other party to the sexual act. The -in ing full implementation by the end of the sumed. But they are available in detail from quiry did not reflect consideration of the summer. The Repeal Act did not directly the complaint, which can be accessed at Marcum framework.” After questioning the affect Article 125, leaving open the ques- Lambda Legal’s website. The complaint al- Appellant, the military judge asked Appel- tion whether military tribunals may alter leges that Charlie Pratt, then a 15-year-old lant’s counsel if he desired further inquiry. their enforcement of Article 125 in light of gay student at the high school, dropped out Counsel and judge then entered into a the new phenomenon of service by openly in 2004 after a campaign of harassment, discussion of Lawrence and Marcum, as a gay members. This decision by the Armed assault, and threats against him. The com- result of which the military judge further Forces Court of Appeals suggests that the plaint was also filed on behalf of his sister, questioned Appellant about “the location court is adopting stringent procedural re- also a student there, who joined Pratt in of the act of sodomy, the presence of any quirements for prosecutions of consen- seeking the establishment of a GSA at the other person in the room, and the military sual sodomy that may portend giving even school. relationship between Appellant and the greater weight to the Lawrence decision. It has long since been firmly established, other person involved in the sexual act.” A.S.L. in decisions by judges ranging across the The judge did not first explain -to Appel political spectrum, that under the federal lant the potential significance of these Lambda Legal Suit Against Indian Equal Access Act, students who wish to factors, and the Appellant responded that River Central School District Will form a gay-straight alliance at their school “the incident took place at the Transient Continue are entitled to do so if the school allows Visitors Quarters on a U.S. Navy facility; any other non-curricular clubs whatsoever, that the other participant in the sexual ac- U.S. District Judge Glenn T. Suddaby and to be afforded equal status, recogni- tivity was a member of the Navy assigned (N.D.N.Y.) has ruled that a lawsuit filed by tion, and benefits as a recognized student to the same ship as Appellant; and that a Lambda Legal on behalf of two students organization. And it has been firmly estab- third shipmate ‘was present and asleep in (a brother and sister) against the Indian lished as well since late in the last century the room’ at the time of the charged act of River Central School District (in Central that anti-gay discrimination by state actors LESBIAN/GAY LAW NOTES April 2011 59 can be challenged under the Equal Protec- ucation Law for suing a school district were the District, the School Board, and various tion Clause and is unconstitutional unless not applicable. The court rejected a statute individual named defendants “discrimi- supported by a rational non-discrimination of limitations argument, finding that lead nated against Plaintiff Pratt because of his justification. plaintiff Charles Pratt was a minor when sex and sexual orientation, and were delib- One wonders, reading Judge Suddaby’s these events occurred, and the statute of erately indifferent to antigay harassment of opinion, whether school officials sought le- limitations on his claims would not start to him by other students and faculty.” Indeed, gal advice at any time prior to being served run until after his 18th birthday. As a result, plaintiffs alleged harassment so severe that with this lawsuit, since competent legal his state law claims were not time-barred Pratt had to drop out of school, and that advice would have warned them about the when the lawsuit was filed before his 21st various defendants were aware of the ha- potential liability they faced. In the first birthday. rassment but took no remedial action. This major case on harassment of gay students Disappointingly, the court found that is enough to state a valid equal protection resulting in a trial verdict, Nabozny v. Podle- controlling appellate division precedent claim, in light of evidence that school of- sny, 92 F.3d 446 (7th Cir. 1996), Lambda compells dismissal of claims against the ficials took action to protect non-gay stu- Legal obtained a settlement of close to $1 school district under the New York State dents who encountered harassment. million for a gay man subjected to simi- Human Rights Law. The Appellate Divi- Plaintiffs alleged that First Amendment lar conduct after a jury voted to hold the sion ruled in East Meadow Union Free expressive association rights as well as the school district liable, and there have been School District v. New York State Division federal Equal Access Act were violated by similar cases in the interim involving sig- of Human Rights, 65 A.D.3d 1342 (2009), the way the District responded to their re- nificant damage awards. Further, it is amaz- leave to appeal denied, 14 N.Y.3d 710 quest to start a GSA at the school. Here ing to read in the court’s opinion that the (2010), that a school district is not an “edu- the school argued that since the lawsuit district argues that anti-gay discrimination cation corporation or association” within was filed they have allowed a GSA to meet may not be attacked as unconstitutional the definition of a public accommodation at the school. However, plaintiffs coun- because the Supreme Court has not held in the state Human Rights Law, and thus ter, the GSA still has not been accorded that sexual orientation claims involve a not governed by that law’s ban on sexual equal treatment with other student groups, “suspect class.” Ever since the Supreme orientation discrimination. a point that defendants didn’t bother to Court’s 1996 decision in Romer v. Evans, However, the court found that the New refute in their motion to dismiss. Judge 517 U.S. 620, it has been well established York State Civil Rights Law, which also Suddaby observed that compliance with that anti-gay discrimination is actionable mentions sexual orientation and specifically the law after a lawsuit is filed would not under the 14th Amendment. But then, focuses on harassment by any “institution, relieve the defendant of liability for failing perhaps the school district’s legal advi- or by the state or any agency or subdivi- to comply with the law before the lawsuit sors are not particularly well informed, or sion of the state,” did apply, and that Pratt’s was filed, and would not provide a basis to thought they could render advice without factual allegations were sufficient to ground dismiss a lawsuit that was seeking damages. doing legal research. This would be consis- valid claims of sex and sexual orientation The District also mounted the tired tent with Judge Suddaby’s criticisms about discrimination against the defendants un- old argument, rejected numerous times in the procedural flaws and oddities of the der this statute. other cases, that because it was not required Defendants’ motion, which “vacillates so Of greater potential significance for pur- to allow student clubs to exist, it could not freely between asserting a [dismissal] chal- poses of this lawsuit in federal court, Judge be charged with a violation of the First lenge and asserting a [summary judgment] Suddaby refused to dismiss the federal stat- Amendment for rejecting the formation of challenge — often in the same sentence” utory and constitutional claims. a GSA. This misses the point of the First that the motion “arguably violates” the Title IX of the Education Amendments Amendment claim, which is that having Federal Rules of Civil Procedure, and thus Act of 1972 applies to sex discrimination decided to allow student clubs to form, the shouldn’t be considered at all. But the judge in schools that receive federal funding, and school district has created a limited public decided to overlook these problems and get courts have found that it applies to harass- forum in which it is not free to selectively to the merits of the motions. ment of gay students due to gender non- forbid particular clubs because of its disap- As to procedural defenses, the judge re- conformity that results in a hostile educa- proval of their subject matter unless there is jected the defendants’ claims that various tional environment. The court found that some good non-discriminatory justification state statutory claims had to be dismissed Pratt’s allegations were sufficient to raise for doing so. Content-based regulation of because certain notices hadn’t been sent to this theory of liability, contending that speech and association is suspect under the the defendants before the lawsuit was filed, Pratt was harassed due to gender stereotyp- First Amendment, so the court refused to but accepted the argument that such no- ing, as reflected in the derogatory language dismiss this claim on a motion to dismiss. tice must be given before asserting a state directed against him, and that it was severe Finally, the court agreed with the defen- constitutional claim, so the claim of viola- enough to create a hostile environment in dants that under established law a school tion of a provision of the state constitution violation of the statute. district may not be sued for punitive dam- drops from the case. He also found that On plaintiffs’ equal protection claim, the ages, only for compensatory damages and because plaintiffs’ claims concerning de- court noted federal precedents finding that injunctive relief, so the demand for punitive fendant’s denial of equal access for a GSA anti-gay discrimination may violate the damages was dropped from the case. could be said to seek to vindicate a public Equal Protection Clause, and that plaintiffs The upshot of the court’s rulings is that interest, notice requirements under the Ed- had alleged facts “plausibly suggesting” that the district will have to stand trial for vio- 60 April 2011 LESBIAN/GAY LAW NOTES lations of the New York Civil Rights Law, voted 3-0 to recommend that Morado be the end of his employment. His complaint the federal Equal Access law, Title IX, and retained in the Navy. Perhaps this portends alleged violations of the Americans With the federal constitution. The school dis- the de facto end of the policy, especially Disabilities Act, the Connecticut Fair Em- trict’s attorney, trying to put a good face as some Pentagon officials had met with ployment Practices Act (which bans sexual on the decision in a statement to the Wa- LGBT rights advocates earlier in March orientation discrimination), the Family tertown Daily Times published March 31, to discuss progress towards the certification & Medical Leave Act, Section 504 of the pointed out that the ruling was not “en- process and assured them that it was well Rehabilitation Act, Title VII of the Civil tirely a victory” for the plaintiffs and “isn’t under way and would result in certification, Rights Act of 1964, and a common law something complete adverse for the school most likely in the fall. wrongful discharge in violation of public district.” That’s certainly true. But what is California - Proposition 8 Case Devel- policy claim. The hospital moved to dismiss also certainly true is that the major legal opments - The California Supreme Court two of the counts: Title VII and the com- claims of the case survived the motion, and rejected motions to expedite its consider- mon law claim. In granting the motion, that the ruling was mostly a victory for the ation of the question certified by the 9th Judge Hall pointed out that a gay employee plaintiffs, which means that it’s certainly Circuit Court of Appeals over the stand- bringing a sex discrimination claim un- time for a settlement. One suspects that the ing of Proponents of Proposition 8 to ap- der Title VII must allege facts that would experience of named defendants testifying peal the district court’s decision declaring support a conclusion that the employer’s at trial would not be enjoyable.... at least to Proposition 8 unconstitutional. As of now, action was motivated by his sex, which he them. Now that the motion to dismiss is it appears that oral argument before the hadn’t done. Sexual orientation discrimina- past, discovery can begin and Lambda Le- California Supreme Court will probably be tion claims as such are not actionable under gal’s crack attorneys can make the district scheduled for late in the summer or early in this statute. Furthermore, Maroney could officials squirm in depositions, which one the fall, perhaps as early as September. In not take advantage of the Title VII sexual suspects they would like to avoid experi- light of this delay in resolving the standing harassment cases that turn on gender non- encing. A.S.L. issue, injecting as much as a year into the conformity or sexual stereotyping, because pendency of the 9th Circuit appeal, coun- he made no pertinent factual allegations to Federal Civil Litigation Notes sel for the plaintiffs and the city of San support those theories. Finally, Judge Hall Francisco, joined by counsel for Governor found precedents required dismissing the Military — On March 31, a three-mem- Jerry Brown, Attorney General Kamala D. common law wrongful discharge cause of ber administrative separation board held a Harris and public interest amici, filed pa- action when the plaintiff had available stat- hearing on the proposed separation from pers urging the 9th Circuit to lift the stay utory remedies on basically the same theory the service of Navy Petty Officernd 2 Class on District Judge Vaughan Walker’s ruling — in this case, the ADA, Rehab Act and Derek Morado under the “Don’t Ask, holding Proposition 8 unconstitutional, Connecticut sexual orientation discrimina- Don’t Tell” policy. Although Congress but the court rejected this suggestion in a tion claims. enacted and the president signed legisla- cryptic announcement released on March Massachusetts, New York, Connecti- tion prospectively repealing the policy in 23. * * * Clerical revision: With changes re- cut, California — DOMA Case Develop- December, the repeal does not take effect sulting from the November 2010 elections, ments — Rep. John Boehner, the Speaker of until sixty days after a joint certification by motions have been granted to substitute the House of Representatives, convened a the President, Secretary of Defense, and new office-holders for old in the caption Legal Advisory Committee made up of ma- Chair of the Joint Chiefs of Staff that all of the pending appeal, so lead respondents jority and minority leadership in the House steps have been taken to ensure that repeal are now Gov. Edmund G. Brown, Jr. and to determine whether the House would at- of the policy does not adversely affect mili- Attorney General Kamala D. Harris. With tempt to defend the Defense of Marriage tary readiness and effectiveness, a certifica- Judge Walker’s retirement from the bench, Act (DOMA) in pending litigation. At- tion that is expected to be given before the the case has been reassigned to District torney General Eric Holder had informed end of 2011. Morado’s discharge case dates Judge James Ware for any further action Boehner that there are nine pending cases from 2009, when he posted a photo of him- that might need to be taken at the district in several different jurisdictions where legal self on his MySpace page kissing another court level. The newly-elected Imperial challenges are pending to DOMA, includ- man, was turned in by a senior member of County Clerk has also sought to intervene ing an appeal pending before the 1st Circuit, his unit and then processed for discharge. as a co-appellant with the Proponents of in which DOJ planned to take the position As a practical matter, discharges have gen- Proposition 8. going forward that Section 3 of DOMA erally not been carried out under the policy Connecticut — In Maroney v. Wa- is unconstitutional. On a party-line vote since last fall, when Secretary Gates di- terbury Hospital, 2011 WL 1085633 of 3-2, the Committee concluded that the rected that any discharge under the policy (D.Conn., March 17, 2011), U.S. District House should intervene, and instructed the had to be finally approved by the Secretary Judge Janet C. Hall granted defendant’s House’s Counsel, Kerry Kircher, to under- of the relevant service branch after going motion to dismiss a gay employee’s Title take the defense of Section 3 in the pend- through several layers of high level ap- VII harassment and retaliation charge and ing cases. The Democratic members of the proval. (The unspoken goal of this change a state wrongful discharge charge. Maroney committee, Majority Leader Nancy Pelosi was to delay finally discharging anybody had claimed that the hospital engaged in and her second-in-command, Steny Hoyer, pending repeal of the policy.) At the con- a campaign of harassment against him and argued that this expense is unnecessary, in clusion of the March 31 hearing, the panel his same-sex partner, ultimately resulting in that amicus parties could be counted on LESBIAN/GAY LAW NOTES April 2011 61 to make the arguments that the House’s to forbid sexual orientation discrimina- will be shared equally.” Ten days after exe- counsel would make in defense of the law. tion. The settlement also includes an undis- cuting this agreement, they were married in Kircher informed the Committee that his closed monetary payment as backpay and Greenwich, CT. Jane subsequently filed for small office would need to hire outside additional compensation. Cooley lost his divorce, but the action was withdrawn by counsel to undertake litigation work, which job after he called 911 when his boyfriend stipulation and instead she filed this action, will be expensive, but the majority of the became physically violent while Cooley was seeking sale of the property and account- Committee voted to go ahead. Does this at home and off duty on June 14, 2010. Lo- ing of the proceeds along the lines of the qualify as an “earmark” for some big firm cal police responded to the call and listed pre-nup. Diane opposed, arguing that since litigation department? * * * In addition to Cooley as the “victim” on their report. The they were married, the real property must the nine cases now pending, Immigration Forrest County chief of corrections also be dealt with through a divorce proceeding Equality has announced that it will be put- responded to the call, and upon learning under the equitable distribution law. Judge ting together a class action challenge to that Cooley was gay, told him not to return Giacomo ruled that the property acquired the refusal of the Department of Home- to work until reporting the incident to his prior to marriage was not a marital asset, land Security’s Immigration Control and supervisor. The next day, Cooley was noti- and that as a tenant in common Jane had Enforcement agency to recognize lawfully fied of his termination. The Department a right to maintain an action to partition contracted same-sex marriages involving has never indicated any reason for Cooley’s real property. Finding no triable issues of foreign national’s and U.S. citizens for termination, and a press release from the fact, and that no divorce action was pend- immigration purposes. IE has not yet an- Sheriff expressed happiness at his return. ing, “any issue with respect to equitable dis- nounced where it is planning to bring the Hattiesburg American, March 29. tribution is irrelevant,” wrote Giacomo. He lawsuit. * * * On March 15, U.S. Magistrate New Jersey — A Hudson County jury found that before directing a sale, he had to Judge James C. Francis, assigned to deal has awarded damages of $3.15 million to direct an accounting to determine the con- with pre-trial issues in Windsor v. United two who were the victims of a hate tributions of each party and the expenses States, 10 civ. 8435 (JCF) (S.D.N.Y.), issued crime committed by employees of a Union of the property since purchase. He denied an order giving Congress until April 18, City Burger King restaurant, NJ.com re- Diane’s motion to dismiss the action, and 2011, to file a motion to intervene, and set ported on February 25. A civil trial on com- granted Jane’s motion declaring the status a conference date of May 9 at 9:30 am for plaints filed by Peter Casbar and Noel Ro- of the parties as tenants in common and the plaintiff, DOJ, and “any Congressional bichaux under the New Jersey Law Against appointment a referee prior to the sale. intervenor” to meet with Francis “to discuss Discrimination began in Hudson County New York — The Legal how this case should proceed in light of the Superior Court on February 7, with the ver- Defense and Education Fund filed lawsuits President’s decision, as announced by the dict rendered on February 24. Of the total on March 22 on behalf of Sam Berkley and Attorney General on February 23, 2011, damages, $1.7 consists of punitive damages. Joann Marie Prinzivalli against the City of that Section 3 of the Defense of Marriage The damages are to be paid by corporate New York in New York County Supreme Act (‘DOMA’), 1 U.S.C. § 7 as applied to defendants, Food Services Properties Corp. Court, challenging City Health Code re- same-sex couples who are legally married and Union City Restaurant Corp., owners quirements for the issuance of corrected under state law, violates the equal protec- of the Burger King franchise restaurant in birth certificates to accord with the gender tion component of the Fifth Amendment.” question. Two employees from that loca- identity of . The Code requires The plaintiff was stuck paying $350,000 in tion previously pled guilty to aggravated “convertive surgery” as a prerequisite. In estate taxes because the Internal Revenue assault charges. The plaintiffs had testified their lawsuits, the plaintiffs argue that this Service refused to acknowledge that she that they had some dispute with the person requirement is obsolete and unnecessary, in was married to the decedent. A.S.L. who was taking their order, which escalated that the current medical consensus treats and led to them being attacked by other genitals as secondary to the issue of gen- State Civil Litigation Notes employees when they left the restaurant. der identity. An attorney for TLDEF, Noah New York — Westchester County Su- Lewis, told (March 23), Mississippi — The American Civil -Lib preme Court Justice William J. Giacomo “It’s just a highly individual decision about erties Union (ACLU) of Mississippi has ruled on March 22 in Taylor v. Taylor, whether you want to have surgery on your reached an out-of-court settlement with 27940/2010, NYLJ 1202488323741, at *1 genitals. There are risks with this surgery. the Forrest County Sheriff ’s Department (published March 29), in a case concern- People might be more inclined to stick that will result in a new phenomenon in ing a real property dispute between lesbian with what they have.” Lewis also noted that the state: a government agency with a non- spouses. Jane and Diane purchased a house gender reassignment surgical procedures discrimination policy covering sexual ori- together as tenants in common in Hast- are expensive and usually excluded from entation. ACLU had sued in U.S. District ings-on-Hudson in July 2008. In Decem- coverage under health insurance policies, Court on behalf of André Cooley, a deputy ber of that year, they executed a pre-nuptial as they are excluded from Medicaid cover- corrections officer who alleged that he was agreement, providing, in addition to other age. In addition, some people are poor can- discharged on account of his sexual orien- terms, “In addition, we do both mutually didates for the surgical procedures due to tation in violation of the Equal Protection agree that the amount of money each of their health status. The overwhelming ma- Clause of the 14th Amendment. As a result us paid for our home… will be returned to jority of New Yorkers seeking of the settlement, Cooley will be reinstated each of us upon the sale of the home. Any birth certificate changes have not had such and the department will amend its policy profit over and above that which we paid surgery. Lewis argued that New York must 62 April 2011 LESBIAN/GAY LAW NOTES adopt a standard akin to most other states Texas — The Fort Worth City Council March 29, 2009. From the court’s summary — a letter from a doctor certifying the sex has authorized a $400,000 payment to set- of the evidence, what they did to the victim change — and noted that this is deemed tle a lawsuit brought by Chad Gibson, who (who is referred to respectfully by her de- adequate now for passports and driver’s li- was severely injured by city police officers sired pronoun despite her male name by the censes in most jurisdictions. Speaking for and state Alcoholic Beverage Commis- court throughout the opinion) was fright- the New York City Law Department, Ga- sion agents in the Rainbow Lounge raid ening, humiliating, and potential quite briel Taussig told The Times that the Health in 2009. Although both the police depart- harmful physically and psychologically, and Department “must be satisfied that an ap- ment and the state agency’s investigations many might consider the sentence imposed plicant has completely and permanently claimed that no excessive force was used, by the trial judge to be a mere slap on the transitioned to the acquired gender prior to Gibson’s severe injuries speak for them- wrist. The sentences mentioned by the the issuance of a new birth certificate,” but selves. The city dropped all charges that had court sound light compared to the descrip- was not quoted as to any reason why this been filed against Gibson and several other tion of the offense. should be so when other forms of official bar patrons arrested that night. Ft. Worth Florida — The 3rd District Court of Ap- documented are being issued without the Mayor Mike Moncrief premised his sup- peal rejected a challenge to the second-de- surgical requirement. port for the settlement on “minimizing the gree murder conviction of Baron Moore for Texas — The Texas Supreme Court liability of exposure to the city,” emphasiz- the murder of Keith Culbertson, a gay man. found that a man being tried in a civil com- ing that it was “not an admission of guilt. Moore v. State, 2011 WL 798953 (March 9, mitment proceeding is entitled to a new It is an attempt to put this behind us and 2011). Prosecutors’ theory of the case had trial because his counsel was stopped by move forward.” Associated Press, Chron.com, Culbertson being singled out as a victim the trial judge from asking potential jurors March 18.; Ft. Worth Star-Telegram, March due to his sexual orientation. Moore’s at- whether they would be able to give a fair 23. torney had tried to keep the sex angle out trial to a person whom they believed to be a — Governor Scott Walker of the trial, but it was difficult to do when homosexual. In re Commitment of Hill, 2011 has removed the attorney who was repre- Culbertson’s body was found apparently WL 836933 (March 11, 2011). The State senting the state as defendant in a lawsuit dragged to a field with his pants down and was attempting to have Hill committed as a challenging the validity of the state’s do- blood matching his DNA found in his mo- violent sexual offender. One of the elements mestic partnership registry. Plaintiffs in the tor vehicle, a set-up leading to the implica- it would have to prove was that Hill suf- lawsuit claim that enactment of the registry tion that Moore and Culbertson may have fered “from a behavioral abnormality” that was barred by the state’s constitutional pro- had sex in the car before Moore killed him. made him “likely to engage in a predatory vision against same-sex marriages. Walker’s In addition, a witness testified that Moore act of sexual violence.” During Hill’s pre- predecessor, a Democrat, had selected Les- had told her that he had killed a “” trial deposition, the State questioned him ter Pines, a prominent Madison attorney, and hidden the body. On appeal, Moore about his sexual history, eliciting the infor- to defend the statute. Walker, a Republi- protested the trial judge’s failure to declare mation that he had sex with other inmates can, gave no immediate signal as to who a mistrial based on statements made in in an all-male facility. At trial, the State’s he will appoint to replace Pines. (Milwau- closing argument by the prosecutor allud- expert testified that “if somebody has het- kee Journal Sentinel, March 24). Is it pos- ing to the sex-related evidence, despite a erosexual preferences and then they later sible that Walker, taking a leaf from Presi- motion in limine granted by the trial judge begin practicing homosexual acts, it infers dent Obama’s book, will announce that he at the outset regarding comments about the that there is an instability within their per- agrees with the plaintiffs that the registry sexuality of the victim or defendant. The sonality which again, is more evidence of is unconstitutional and will no longer de- court found that the prosecutor was merely why I diagnosed him with a personality fend it in court? This sort of thing is why accurately summarizing relevant evidence disorder.” The Supreme Court concluded some have criticized Obama’s decision not going to the motive for the crime. Moore that because Hill’s sexual history, which to defend Section 3 of DOMA as creating had also challenged unsuccessfully the trial included homosexual activity, was “part of a dangerous precedent. A.S.L. judge’s charge to the jury on manslaughter. the State’s proof of his alleged behavioral New York — The Manhattan -Dis abnormality,” the trial court’s refusal to al- State Criminal Litigation Notes trict Attorney’s Office is bringing murder low his counsel to ask questions on voir dire charges against Renato Seabra, a Portu- about potential anti-gay bias “went to the California — In People v. Wright & Brock, guese model, in the death of Carlos Cas- potential jurors’ ability to give him a fair 2011 WL 675933 (Cal.Ct.App., 6th Dist., tro, a fashion writer, in a Times Square trial.” Indeed, some jurors who were asked Feb. 25, 2011) (not reported in Cal. Rptr. hotel. Seabra confessed to the murder, then the question had responded that they could 3d), the court of appeals affirmed the con- sought to retract his confession. His attor- not give a fair trial, which may be what victions of Kevin Wright and Luther Clay- ney, David Touger, indicated that he might prompted the trial judge to cut off the line ton Brock for assault, but ordered a correc- pursue a psychiatric defense in the case. of questioning. The Supreme Court found tion of the record on Wright’s conviction There was media speculation that Castro that the trial judge abused his discretion in and a remand on Brock’s case for recon- brought Seabra with him to New York this regard, as well as in connection with sideration of some fees imposed as part of on a business trip expecting sexual favors, another line of questioning that the judge the sentence. Wright and Brock were part and that Seabra eventually rebelled against had cut short, and remanded for a new trial. of a group of five men who set upon and these expectations and killed Castro, af- assaulted a transgender man in San Jose on ter which he attempted to commit suicide LESBIAN/GAY LAW NOTES April 2011 63 by slitting his wrists. Seabra is being held version of this bill that did not include gen- reintroduced legislation originally intro- without bail. New York Post, March 4. der identity was approved by the House in duced last year to help combat harassment Pennsylvania — A criminal complaint 2007, the version of the bill including gen- and cyberbullying on college campuses has been filed against John Thomas, 28, of der identity introduced in the last session of by requiring colleges and universities that Lansdowne, in the murder of Murray Seid- Congress did not come to a vote in either receive federal money to have anti-harass- man, 70. Seidman was killed in his apart- chamber. Frank conceded that introduc- ment policies in place. The measure is called ment in January, his body found several tion in the House was mainly symbolic at the Tyler Clementi Higher Education Anti- days later. Thomas allegedly stoned -Seid this time, since the Republicans control the Harassment Act, after the Rutgers Univer- man to death with a rock stuffed in a sock, chamber by substantial margins, and their sity gay freshman who committed suicide in accord with Biblical commands to exe- party platform has traditionally failed to after his roommate and another student cute homosexuals by stoning, or so Thomas support banning anti-gay discrimination. allegedly harassed him and violated his pri- is reported to have told police. The two men On March 16 the Respect for Marriage vacy using the internet. They acted just af- were friends and Thomas is the executor Act, a bill to repeal the Defense of Marriage ter Sen. Bob Casey (D-PA) and Rep. Mark and sole beneficiary under Seidman’s will. Act and to ensure respect for State regula- Kirk (R-IL) had introduced their Safe SFGate.com, March 18. tion of marriage, was reintroduced in both Schools Improvement Act, also intended to — Minnehaha County houses of Congress with numerous co- deal with the problem of bullying, focused Judge Bill Srstka approved a name change sponsors. First introduced on September on public schools and school districts that request from two Sioux Falls women who 15, 2009, in the 11th Congress (the House receive federal funds. In addition to requir- were legally married in and who version was H.R. 3567), the measure would ing schools to put appropriate policies in sought to use their married surname at repeal Section 2 of DOMA (which pur- place to deal with bullying and harassment home in South Dakota for, among other ports to relieve states of any constitutional on a variety of listed grounds, including things, getting new drivers’ licenses. The obligation to honor marriages contracted sexual orientation and , the Department of Public Safety had refused in other states if the marriages involve measure would require states to report inci- to accept their Iowa marriage license as a same-sex partners), and would substitute dent data to the US Department of Educa- basis to issue new drivers’ licenses, thus the for Section 3 (the federal non-recognition tion. petition for a legal certification of change provision) a provision that the federal gov- Colorado — The State Senate gave pre- of name. The court rejected any argument ernment will consider somebody to be mar- liminary approval on March 23 to a bill that that South Dakota’s mini-DOMA stood in ried if their marriage is valid in the state or would make available civil unions carrying the way of the name change. Judge Srstka other jurisdiction where it was entered into. the rights and responsibilities of marriage told a reporter for the Sioux Falls Argus Thus, for example, a same-sex couple resi- under Colorado state law for same-sex Leader (March 15) after the hearing, “It’s dent in Pennsylvania who were legally mar- couples. The measure was passed with the just a name change. You can call yourself ried in Connecticut or would be support of all Senate Democrats and some whatever you want, as long as it’s not being considered married for purposes of federal of the Republicans. Proponents cited Re- done for fraudulent purposes.” The newspa- law, even though their state of residence publican support in the Senate in the hope per reported that although the state’s mini- does not recognize the marriage, were that the House, controlled by the Republi- DOMA was passed in 2006, it just became this law to be passed. Representative Jer- cans, might take a similar bipartisan view an issue in the Public Safety Department rold Nadler of New York is the lead House of this legislation. Pueblo Chieftain, March when they upgraded identification require- sponsor. Senator Dianne Feinstein of Cali- 24. However, on March 31, the House Ju- ments for drivers’ licenses to comply with fornia is the lead Senate sponsor. diciary Committee defeated the bill on a new federal requirements to produce li- On March 10, Rep. Jared Polis (D-Co- party-line vote of 6-5. Republicans control censes that can be used to access aircraft. lo.) and Sen. Al Franken (D-Minn.) held a the House by the razor-thin margin of one A.S.L. press conference to announce the reintro- vote, and proponents hoped that if they duction of the Student Non-Discrimination could get the measure to the House floor, Legislative & Administrative Act, which was first introduced in 2010. The they could find at least two Republicans to Notes measure was re-introduced with 27 Senate join the Democrats in passing the measure, co-sponsors and 96 House co-sponsors. but it was not to be — at least for this ses- Federal — March 30 marked the reintro- The bill would use the hook of federal sion. Denver Post, April 1. duction of the Employment Non-Discrim- spending to require schools to ban discrim- Delaware — A civil unions bill, S.B. 30, ination Act in the House by lead sponsor ination based on actual or perceived sexual was approved on March 30 by the Sen- Rep. (D-Mass.) The bill, orientation or gender identity, similarly to ate Administrative Services Committee which would apply to employers, employ- federal laws requiring schools that receive after a two-hour hearing, and was sent to ment agencies, unions and joint labor man- federal financial assistance to ban sex dis- the floor for debate. The civil unions to be agement committees covered under the crimination. The re-introduction is largely established under the bill would be state Civil Rights Act of 1964, would outlaw symbolic at this point, since the House of law equivalents to marriage for same-sex discrimination in employment based on ac- Representatives as presently constituted couples, similar to such laws established in tual or perceived sexual orientation or gen- would never approve such a measure. Vermont, Connecticut and New Hamp- der identity, and would apply to both the Also on March 9, Sen. Frank Lauten- shire (before those states moved to allow public and private sectors. Although a prior berg (D-NJ) and Rep. Rush Holt (D-NJ) marriage for same-sex couples) and New 64 April 2011 LESBIAN/GAY LAW NOTES

Jersey. Wilmington News-Journal, March Amendment for a state to prosecute con- tection based on sexual orientation or gen- 31. senting adults for private consensual sex, der identity. Opponents of the Missoula Georgia — Rep. Karla Drenner, the first but that has not persuaded legisla- measure, passed a year ago, sought the state openly-gay member of the Georgia House, tors that the state’s law against such con- measure specifically to get rid of the Mis- introduced a bill on March 30, H.B. 630, duct should be repealed. An effort to - re soula protections for LGBT people. The with 70 co-sponsors, to porhibit employ- form the state’s sex crimes law to comply measure passed the House during Febru- ment discrimination on the basis of sexual with the constitutional ruling faltered early ary. * * * Although the U.S. Supreme Court orientation or gender identity. About a in March, when two conservative legisla- ruled in 2003 in Lawrence v. Texas that a dozen of the co-sponsors are Republicans. tors prevailed upon the House Judiciary state may not enforce a criminal statute The bill came in the wake of a federal court Committee, which was considering a mea- against consenting adults for engaging in ruling last year that the General Assembly sure to “clean up” the state’s criminal code, private, non-commercial sex, and the Mon- unlawfully discriminated against one of its to remove the repeal language, according to tana Supreme Court had previously issued employees based on her gender identity. At- an online report by KSN-TV on March 10. a similar ruling, such a penal law remains lanta Journal & Constitution, March 31. Maryland — Although the State Senate on the books in Montana, despite attempts Illinois — A legislative proposal to place approve a marriage equality bill by a narrow by Democratic legislators to secure its re- a state constitutional amendment on the margin and the relevant House committee peal. The Senate passed S.B. 276, a repeal ballot to ban same-sex marriages was killed approved it as well, debate on the floor of measure introduced by Sen. Tom Facey (D- for this session when Senate President John the House proved inconclusive, as support- Missoula), by a final vote of 35-14, but on Cullerton referred it to a sub-committee on ers, concluding they were a few votes short March 29 the House defeated an attempt constitutional amendments that currently of a majority, had the measure tabled and b y Rep. Diane Sands (D-Missoula) to get has no members, a procedural device to ter- returned to the committee on March 11 the bill discharged from the House Judicia- minate any consideration. Illinois recently rather than suffer an adverse vote. It was ry Committee for a floor vote. Sixty votes enacted civil unions for same-sex partners, generally believed that this had effectively are required to remove a bill from a com- and has a state law banning same-sex mar- killed the bill for the current legislative ses- mittee to the floor without the commit- riages. The Advocate.com, March 31. sion, although the theoretical possibility tee’s consent, but Sands’ motion received — The Indiana Senate Judi- of bringing it back to the floor exists. The only 51 votes. BillingsGazette.com, March ciary Committee voted 7-3 on March 23 governor, Martin O’Malley, had pledged 29. Quite a few states have failed to take to approve a proposal to amend the state to sign the bill if it was passed, but it was any legislative action to repeal sodomy laws constitution to ban same-sex marriages widely anticipated that opponents would after the Supreme Court’s 2003 decision, and domestic partnerships. The full Sen- quickly obtain the necessary signatures for including — ironically — Texas, where it ate voted 40-10 to approve the measure on a repeal initiative, so same-sex marriage remains a misdemeanor for consenting March 29. The measure previously passed would probably not have become available same-sex partners to engage in sex in pri- the House. Attempts to amend it in com- unless and until such a measure was de- vate, although anybody arrested under the mittee, which would have required a new feated at the polls, even had the bill passed. statute would probably have a good case for House vote if the full Senate approved it in — On March 2, the Senate false arrest. an amended form, were unavailing. How- Reforms, Restructuring and Reinventing New Hampshire — The House Judi- ever, the process of constitutional amend- Committee approved a resolution to over- ciary Committee voted unanimously on ment in Indiana is time-consuming, as the turn the state Civil Service Commission’s March 3 to put off further consideration exact same proposal would have to be ap- decision in January to extend health bene- until 2012 of pending bills to repeal the proved by both houses after the next leg- fits to unmarried partners (including same- state’s law authorizing same-sex mar- islative elections, and then would be put to sex partners) of state employees. A spokes- riages. The bills will come up for a vote in the voters. The earliest that it could come person for the Office of the State Employer the Republican-controlled legislature early before the voters would be 2014. At pres- said that the motivation for the resolution next year. Governor John Lynch, a Demo- ent, thirty states ban same-sex marriage by was cutting costs, and that overturning the crat who signed the same-sex marriage bill constitutional provision, of which twenty extension of benefits would save the state at into law, has indicated that he will veto any also ban domestic partnerships and/or civil least $8 million in the first year. The ben- bill to repeal the same-sex marriage law. unions for same-sex partners. (Indianapolis efits are scheduled to go into effect on Oc- However, Republicans hold veto-proof ma- Star, March 24 & 29). tober 1. Lansing State Journal, March 3. jorities in both houses of the legislature, so Iowa — Although it passed the House, Montana — The Senate Local Govern- unless a few Republicans are willing to de- a proposed constitutional amendment to ment Committee has approved H.B. 516, a part from their party’s official opposition to overrule the and ban measure that would prohibit local govern- same-sex marriage and vote against over- same-sex marriage in the state died in the ments in Montana from including in their riding, it is possible that same-sex marriage Senate when it failed to be approved in civil rights law any grounds of discrimina- will be ended in New Hampshire next year. committee within the mandated deadline tion not forbidden by state law. The imme- New York — Governor Andrew Cuomo for passage during the current session. (Des diate impact of this would be to invalidate convened a meeting of leading advocates Moines Register, March 4) protection for LGBT people under the city for the Marriage Equality bill pending in Kansas — The U.S. Supreme Court may of Missoula’s civil rights ordinance, as the the state legislature on March 9 to dis- have decided that it would violate the 14th state’s civil rights law does not provide pro- cuss strategy for enactment. The measure LESBIAN/GAY LAW NOTES April 2011 65 has passed the Assembly several times, sexual orientation and gender identity as limits what teachers and students are able but fell short in the Senate in a Decem- prohibited grounds of protection, the new to discuss in the classroom. It means they ber 2009 vote when all Republicans voted Code clarifies coverage against discrimina- can’t talk about gay issues or sexuality even against it and several Democrats withheld tion for persons living with HIV and also with students who may be gay or have gay their support. The governor promised to recognizes the newly-established catego- family.” We think it probably violates the make the measure a priority after enact- ries of marital status and familial status, First Amendment. WVLT-TV.com, Feb. 22. ment of a budget. New York Times, March including the concept of Life Partnership, Texas — Dallas County Commission- 10. The new state budget was subsequently defined as “A long-term committed rela- ers have added sexual orientation to the enacted at the end of March. * * * Mean- tionship between two unmarried [adult] county’s non-discrimination policy as part while, one of the Democratic senators who individuals of the same gender” who have of a general overhaul of the county code, had voted against the bill, Carl Kruger of some connection with the city (residence, the Dallas Morning News reported on Brooklyn, was charged by federal prosecu- working there, own real property there) March 31. A representative of Resource tors on March 10 with multiple corruption and who share at least one residence with Center Dallas, a gay rights group, asked the offenses as part of an indictment that also each other. Life Partnerships must be reg- commissioners to consider adding gender reached to the person widely speculated istered with the city to obtain protection identity or expression, but received no com- to be his same-sex partner, Dr. Michael under the Ordinance, which also provides ment on this request. After the commission Turano, the son of Community Board 18 a procedure for dissolution. Discrimination meeting, County Judge Clay Jenkins said Manager Dorothy Turano. The NY Times against people who are in a Life Partner- he would ask the county’s lawyers to study (March 11) danced around the issue, Kru- ship would violate the ban on discrimina- the matter, but that he believed that adding ger having consistently denied being gay, tion due to family status, since the defini- “sexual orientation” would cover the matter. but the Brooklyn Paper (March 11), quoting tion of family status cross-references the Utah — The Ogden City Council ap- from the complaint and statements by fed- definition of Life Partnership, and Marital proved a bill to prohibit employment and eral prosecutors, found a clear implication Status includes the status of being a Life housing discrimination based on sexual that Kruger and Turano were “romantically Partner. The ordinance applies to employ- orientation or gender identity by a 4-3 vote, involved,” and the NY Post and NY Daily ment, housing, and public accommoda- but Mayor Matthew Godfrey announced News intimated as much in their coverage. tions. At present it can be found on the his intention to veto the measure. God- New York — The New York City Clerk’s City Council’s website — Bill No. 110050 frey cited his concern that landlords sued office has adopted a new policy designed to (Introduced February 3, 2011, as amended, under the ordinance could have a valid 1st provide equal access to marriage licenses February 24, 2011), but eventually will be Amendment free exercise of religion claim to transgender people, responding to an available on the website of the Philadelphia against the city, if they had a religious ba- incident that occurred in the Bronx when Commission on Human Rights, the agency sis for refusing to rent housing to same-sex a transgender couple applied for a license, with enforcement authority. couples. The three council members who presented government-issued photo ID, — At the end of March, Gov. John voted against the measure said that they and then were required to produce birth Kasich signed into law S.B. 5, a measure support the concept of banning such dis- certificates because the clerk wanted fur- intended to curb public sector collective crimination, but could not support the bill ther proof that they were not a same-sex bargaining in the state. An early version of in the absence of an express religious ex- couple. Under the new policy, embodied this bill included a mini-DOMA provision emption from compliance, which the ma- in a memorandum issued by City Clerk that would have outlawed any extension of jority had refused to include. One of the Michael McSweeney, one piece of govern- statutory benefits to non-marital relation- three dissenters would have to change their ment-issued ID will be sufficient. The new ships, but this provision does not seem to vote if the mayor’s expected veto is to be policy also called for the city Clerk to apol- have been included in the version of the bill overridden. Two told the Ogden Standard- ogize to the couple and institute a training that was enacted, based on our extensive Examiner (March 12) that they were stand- program for employees of the Clerk’s office word-and-phrase-search of the 444-page ing firm, while one indicated openness to on issues of gender identity and expres- unindexed measure. reconsidering his position if some compro- sion. New York Post, New York Daily News, Tennessee — Two Republican state leg- mise on the issue could be worked out. March 9. islators in Tennessee have introduced a bill Washington — Domestic partnerships, Pennsylvania — The Philadelphia City — H.B.229/S.B.49 — intended to shelter civil unions and same-sex marriages per- Council unanimously approved a com- elementary and middle school students formed out of state will be recognized in pletely revised and expanded version of the from any classroom conversation about the state of Washington, but only as do- city’s Fair Practices Code, and the new ver- homosexuality. The operative language of mestic partnerships. The measure autho- sion was signed into law by Mayor Michael the bills states: “No public elementary or rizing such recognition passed the House A. Nutter on March 24. The prior ordi- middle school shall provide any instruction 58-39, mainly a party-line vote, and was nance has been renamed as Fair Practices or material that discusses sexual orientation approved by the Senate 28-19 on March Ordinance: Protections Against Unlawful other than .” The Tennessee 30. It was widely expected to be approved Discrimination. One of its purposes was to Equality Project, which is opposing the by Gov. Christine Gregoire. Seattle Times, make expanded protection against discrim- bill, has dubbed it the “Don’t Say Gay” Bill, March 30. ination available to the LGBT community. and criticizes this attempt to censor teach- Wyoming — A bill that was intended Although the prior Code already included ers. Ben Byers, of the Project, observed, “It to prohibit the recognition of out-of- 66 April 2011 LESBIAN/GAY LAW NOTES state same-sex marriages, approved by the of the employee for purposes of entitlement announced that it had obtained documents House by a vote of 31-28, was derailed in to a survivor’s annuity. The proposal stems from the Defense Department showing the Senate on a 16-14 vote. Republicans from President Obama’s June 2, 2010, that the total number of discharges under had argued that the bill was needed to close memorandum directing executive branch the “Don’t Ask, Don’t Tell” military policy a loophole in the state’s existing marriage agencies to review policies that apply to during the federal fiscal year 2010 (the year recognition law, under which the lack of married employees to determine the extent that ended at the end of September 2010) gender references in the law opened the to which they could be extended to same- was 261. This was described as an “all time possibility that the state’s courts might find sex partners without need for legislation. low,” documenting the conclusion reached it appropriate to recognize such marriages. Comments were due on the proposed rule by Judge Phillips in the Log Cabin Re- However, Rep. Pete Illoway argued that no by April 4. BNA Daily Labor Report, 42 publicans lawsuit that in fact the Defense change was needed in existing law. Accord- DLR A-17 (3/3/2011). Department’s arguments for the necessity ing to Wyoming News, he stated: “People are ROTC on Campus — Many universi- of the policy were week. Around the end equal, whether you agree with their lifestyle ties and colleges have had policies exclud- of the last fiscal year, Defense Secretary or not. People that you may not agree with ing the Defense Department’s Reserve Robert Gates altered DoD procedures for are still people. A.S.L. Office Training Corps (ROTC) programs handling such discharges, inserting proce- from their campuses for a long time. Many dural hurdles and clearances that effectively Law & Society Notes of these policies began due to on-campus brought the discharges to a halt, although opposition to the Vietnam War during the Servicemembers found to be gay continued Organization of American States/United late 1960s and early 1970s, but in many to be processed through the system short Nations Human Rights Council — The cases more recent exclusionary policies of discharge. White House announced on March 22 that have been premised on the inconsistency North Carolina Rules of Professional President and President between campus non-discrimination poli- Conduct — The leadership council of the Rousseff of Brazil had agreed to promote cies and the various military policies over North Carolina State Bar agreed last Oc- respect for the human rights of LGBT the past thirty years concerning eligibil- tober to change the preamble of the state’s individuals through the establishment of ity of openly gay people to participate in Rules of Professional Conduct to add a a special rapporteur on LGBT issue at these programs and serve in the military. non-discrimination statement covering the Organization of American States, the With the passage last year of the “Don’t race, gender, religion, age, sexual orienta- first of its kind in the international system. Ask, Don’t Tell Repeal Act,” universities tion and gender identity. Such changes in On the same date, the U.S. joined with 85 have begun reconsidering their policies. the Rules are subject to approval by the other countries at the United Nations Hu- Harvard University has been a leader in state’s Supreme Court. The Associated Press man Rights council to reaffirm their com- this area. On March 3, the University an- reported on March 31 that the North Car- mitment to end acts of violence and human nounced that it had concluded an agree- olina Supreme Court refused to approve rights abuses based on sexual orientation or ment with Naval ROTC to establish a new the change, without comment. State Bar gender identity. The next day, Archbishop relationship, which will take effect when Executive Director Tom Lunsford reported Silvano Tomasi, speaking for the Roman the repeal of the current anti-gay military that Chief Justice Sarah Parker told him at the UN Human Rights policy goes into effect. An announcement earlier in March that the court would not Council meeting, complained that people on the Harvard Gazette website summa- approve it, without giving any reason. The who criticize gay sex for religious or moral rizes the agreement as follows: “As a part of court’s refusal, not expressed in any opin- reasons are being attacked and vilified for the agreement, Harvard will appoint a di- ion, sets back a two year project to add a their views. He stated that although the rector of Naval ROTC at Harvard and will non-discrimination requirement to the Vatican condemned violence against people resume direct financial responsibility for rules. (The American Bar Association’s because of their sexual orientation or be- the costs of its students’ participation in the Model Rules of Professional Responsibil- havior, it continued to condemn the behav- program. The University also will provide ity include a non-discrimination policy, and ior and should not be stigmatized or vili- Naval ROTC with office space and with have been adopted in many jurisdictions.) fied for doing so. Sounds two-faced to us. access to classrooms and athletic fields for Perhaps it is noteworthy in this regard that After all, the Roman Catholic Church has participating students. Harvard Navy and North Carolina does not ban sexual orien- been busy vilifying and stigmatizing (and Marine Corps-option midshipmen will tation or gender identity discrimination by even burning and torturing) gay people for continue to participate in Naval ROTC statute, although some municipalities have centuries. Now that the shoe is on the other through the highly regarded consortium adopted such non-discrimination policies. foot and more of the world is rejecting their unit hosted nearby at the Massachusetts New Orleans Police — A U.S. Justice point of view, it’s not their place to whine Institute of Technology (MIT), consistent Department investigation of the New Or- about it. with the Department of the Navy’s deter- leans Police Department concluded that Federal Policy — Under a rule pro- mination that maintaining the consortium the department was “deeply dysfunctional.” posed by the U.S. Office of Personnel is best for the efficiency and effectiveness of Among other problems, the report issued Management on March 3 (76 Fed. Reg. the ‘Old Ironsides Battalion.’” by the investigators included allegations 11684), federal employees’ same-sex do- Military Discharges — On March 24, that the department targeted establish- mestic partners would be presumed to have Servicemembers United, an organization ments serving the LGBT community for an insurable interest in the continued life of LGBT Servicemembers and veterans, harassment and subjected individual gay LESBIAN/GAY LAW NOTES April 2011 67 people to shake-downs, harassment, and research effort to generate the information Prom Dress Dispute Happily Resolved false prostitution charges. (New Orleans needed to adopt appropriate public health — Belinda Sanchez, an “out” lesbian senior Times-Picayune, March 18). strategies for the various LGBT communi- at Proviso East High School in Maywood, Public School Bullying — The ACLU ties. The Department of Health and Hu- Illinois, wanted to wear a tuxedo to the se- of Florida announced on March 17 the man Services responded to the report with nior prom. The school’s principal said no, terms of an agreement it had reached with an April 1 announcement that Secretary she needed to wear a dress. Sanchez ap- the Flagler County School District after it Sebelius would recommend several policy pealed the principal’s ruling to the board of intervened on behalf of Luke Herbert, a changes to implement recommendations education, and asked the ACLU of Illinois Flagler Palm Coast High School student in the report, including collecting LGBT- to intercede on her behalf. John Knight of who alleged harassment by fellow students related data as part of federal health surveys the ACLU of Illinois wrote to the school and a teacher. The agreement includes an and providing guidance to states on dealing district arguing that Sanchez had a First apology to Herbert by the school for not with LGBT families in programs overseen Amendment right to her choice of tuxedo dealing with his complaints adequately, an or funded by HHS. or dress for the prom. Sanchez then got official reprimand to the teacher in ques- Domestic Partnership Benefits at word that the school district would allow tion, who will be required to make a public Marquette University — The Milwaukee her to wear the tuxedo. A spokesperson apology to Herbert, assistance to Herbert Journal Sentinel reported on March 25 that for the district claimed that a decision had to get him “back on track academically,” Marquette University President Robert been made to grant Sanchez’s appeal before a recommendation to the school board to A. Wild released a written statement an- they received the ACLU letter. (Presumably add “sexual orientation and gender identity nouncing that the university plans to start they consulted an attorney who told them or expression” to the Student Code of Con- offering domestic partnerships benefits in about the prior litigation in other school duct and the district’s bullying and harass- 2012, covering medical, dental and vision districts concerning this issue, as to which ment policy statement, and committing the benefits for registered domestic partners see further in this note…) Responding to district to work with a local LGBT rights of employees. The announcement came a a request for comment from the group to create a series of public service an- year after the university suffered criticism Tribune, the spokesperson said that San- nouncements. when an offer to an openly-lesbian scholar chez’s request had opened up “a new, very Public Support for Same-Sex Marriage to become dean of the university’s arts & interesting and healthy dialogue in terms — A Washington Post/ABC News poll taken sciences faculty was rescinded, purportedly of our prom review procedures. We support during March showed a margin of majority due to concerns about “incompatibility” our students in all of their differences and support for marriages of same-sex couples, between Jodi O’Brien’s scholarly writing we encourage them to express themselves 53%, with support among voters age 18-29 and the “Catholic mission and identity” of in various ways as long as it is not disrup- at 68%. This represents a substantial change Marquette. The university denied that the tive to the school environment.” One hopes in public opinion since polling on this issue offer was withdrawn due to O’Brien’s sexu- this sentiment was conveyed to the high began more than two decades ago, when al orientation, leaving the implication that school’s principal. Chicago Tribune, April 1. barely a third of the public supported same- an openly gay or lesbian scholar who avoid- * * * The ACLU of announced on sex marriage. (Washington Post, March 18). ed publishing on human sexuality or who March 28 that it had achieved an agreement * * * Totaling up the population in states in published papers that accord with the offi- with Terrebonne Parish School District, in which there is legal recognition for same- cial doctrine of the Catholic church would Louisiana, that Monique Verdin would be sex marriages, domestic partnership or be an acceptable candidate for a deanship at allowed to wear a tuxedo to Ellender Me- civil unions, the new advocacy organization Marquette. O’Brien charged that the with- morial High School’s prom. When school Equality Matters found that 42% of the drawn offer was discriminatory, but subse- officials denied Verdin’s request, the ACLU American population lives in such jurisdic- quently negotiated a mutually-agreed set- reminded them about the litigation it had tions, while noting, of course, that under tlement, the terms undisclosed. There was conducted on behalf of Constance mc- federal law those couples who enjoy state speculation that the domestic partnership Millen against Itawamba County School, recognition are entitled to none of the fed- benefits may be an offshoot of the settle- in which the federal court found a First eral rights attending to marriage. ment. The newspaper report also noted that Amendment right and awarded damages Institute of Medicine of the National the university had commissioned a report, to a lesbian student whose request to wear Academies — The Institute of Medicine released in December, that indicated that a tux to the prom had been denied. issued a report on March 31 on LGBT many LGBT students felt harassed at Mar- Bisexual Invisibility & Unrecognized health. The report had been requested by quette, and that some LGB faculty sought Family Relationships — During March the National Institutes of Health, to evalu- more a more supportive attitude from uni- the San Francisco Human Rights Com- ate the current knowledge of the health versity administration. * * * Having been mission unanimously adopted a report pre- status of the LGBT populations, iden- contacted by some other schools, the Mil- pared for the Commission by Lindasusan tify research gaps and opportunities and waukee Journal Sentinel reported on March Ulrich titled “Bisexual Invisibility: Impacts to outline a research agenda. The bottom 27 that two other Catholic institutions in and Recommendations.” Copies of the line of the report is that despite the HIV/ the Milwaukee area are already providing report are available on the Commission’s AIDS epidemic, the LGBT community is domestic partnership benefits: Cardinal website. The report examines the conse- comparatively understudied with respect to Stritch University and Alverno College. quences of rendering bisexuals “invisible” health, and the IOM called for a stepped-up and includes policy recommendations. At 68 April 2011 LESBIAN/GAY LAW NOTES the same meeting, the Commission also Director of Egale Canada, the country’s was the fevered protest that any implication received a report titled “Beyond Marriage: largest LGBT rights organization, hailed that Gandhi was other than heterosexual in Unrecognized Family Relationships,” cop- the project as a “welcome first step” at a his psychosexual orientation was a “slur” or ies of which are also available on the Com- time when 77 countries continue to impose “calumny” against the great leader who is mission’s website. A.S.L. criminal penalties for homosexual conduct. revered as a founder of the nation. But is Toronto Star, March 25. it that surprising? After all, implications by International Notes Hungary — The Hatter Support Soci- some biographers that both George Wash- ety for LGBT People reports that the Met- ington and Abraham Lincoln may have had Australia — The Australian Capital Ter- ropolitan Court of Budapest rejected an emotional attachments to, or even sexual ritory (ACT) has commissioned the Law employer’s appeal of a ruling by the Equal relationships with, other men, have gener- Reform Advisory Council to conduct an Treatment Authority that the employer ated hasty rejections and denials by indi- inquiry into the legal needs of the trans- had violated the country’s equal treatment viduals eager to protect the reputations of gender community. The commission was legislation — which covers sexual orienta- these iconic historical figures, again based launched after press reports about a Fam- tion — by harassing an employee who was on an assumption that any imputation of ily Court decision that allowed a teenage believed to be gay. The claimant worked as homosexuality is a slur. One may well re- girl to start hormone treatment for gender a marketing coordinator and on-screen re- call that under traditional English common transition, as she had been diagnosed with a porter for a local cable television company. law, the false imputation of homosexuality gender identity disorder. Attorney General Rumors about his sexual orientation got was per se , and may still be so Simon Corbell said that the inquiry would started after he shared a room with a male in India. Although that rule has lost much investigate gaps in legal protection with an colleague during a business trip. Threaten- force in common law jurisdictions with the eye to proposing remedies for such gaps. ing and offensive comments by co-workers removal of sodomy laws and the passage Austria — The Austrian Constitutional and the director of the company, including of laws against anti-gay discrimination, it Court finds no violation of constitutional removing his on-screen role, were found to actually remains the law in New York, at equality requirements in the government’s constitute unlawful harassment under the least so far as the courts are concerned. At failure to include incitement to hatred and statute. The ETA fined the company ap- the end of March, at least one Indian state discrimination against homosexuals in prox. 3500 euros. It is reported that anti- had moved to ban distribution of the book statutes that cite race, ethnicity and sex as gay discrimination remains widespread (which was yet to be released in India), and ground on which those things are forbid- in Hungary, but that only a handful of there was local media speculation that the den. Several of the applicants for a declara- discrimination claims have actually been national government might seek to ban it tion from the court are LGBT rights acti- brought to light through enforcement of as the secular equivalent of . vitists who claim to have been victims of the statute, presumably because victims fear Ireland — Mr. Justice Treacy of the such incitement and discrimination in the the notoriety of bringing claims. High Court in Belfast ruled that protection past. The court found that the state was not India — Mass consternation erupted in of freedom of expression under Article 10 obliged by the constitution to lend its as- India as newspapers in the U.S. and U.K. of the European Convention on Human sistance to them. The applicants vowed to published reviews of a new biography of Rights outweighed the offense that might bring the question to the European Court Mahatma Gandhi by Joseph Lelyveld, in be caused by the publication of a newspaper of Human Rights. ILGA Europe, March which Lelyveld relates in a matter-of-fact advertisement by a church headlined “The 11, 2011. way that during his life Gandhi seems word of God against sodomy” and quoting Canada — A failed vote in Parlia- to have conceived a great affection for a scriptural passages. Sandown Free Presby- ment is bringing new national elections in German-Jewish architect and bodybuilder, terian Church had paid for the publication Canada, at a time when opinion polls show Hermann Kallenbach, with whom he lived of such an ad in a newspaper before a Gay that the governing Conservatives do not for several years. Lelyveld quotes from let- was scheduled in Belfast in have the support of an electoral majority ters that carry an implication that Gandhi’s August 2008. Several complaints about the but are likely to emerge again as the most feelings for Kallenbach were sexual. The im- ad were made to the Advertising Standards popular among the major national parties. plication is that Gandhi, who was married Association, which ruled that the ad should With an election pending early in May, to a woman but who eventually proclaimed not be allowed to be published against Immigration Jason Kenney an- a dedication to , lived apart from his in that form, and cautioned the church nounced a pilot project to work with the wife, and lived for several years with Kal- against ads that could cause serious offense. Rainbow Refugee Committee to share the lenbach, may have been bisexual or even Wrote Treacy: “The applicant’s religious cost of sponsoring gay, lesbian, transgender, gay in his orientation. Lelyveld, defending views and the Biblical scripture which un- transsexual and bisexual refugees. Under his work against sensational press reports, derpins those views no doubt cause offence, the terms of the project, financial assistance pointed out that he had not stated or im- even serious offence, to those of a certain with go to Rainbow to provide $100,000 plied that the men had actually engaged in sexual orientation. Likewise, the practice to cover three months of income support sex or that Gandhi had departed from his of homosexuality may have a similar effect for refugees upon their arrival in Canada, commitment to celibacy, but had merely re- on those of a particular religious faith. But and to underwrite provision of orientation ported what he found based on the records Article 10 protects expressive rights which services, accommodations, food and other and correspondence of the time. What was offend, shock or disturb. Moreover, Article basic needs for the refugees. The Executive most disturbing about the reaction in India 10 protects not only the content and sub- LESBIAN/GAY LAW NOTES April 2011 69 stance of information but also the means of servative Christians in the country, with niche London litigation firm Bivonas, who dissemination, since any restriction on the the encouragement of U.S. and law- discovered a hand-written note by a partner means necessarily interferes with the right yer Scott Lively, who was invited to visit at the firm referring to hims in homopho- to receive and impart information.” Belfast the country by Pro Familia and Moldova bic and discriminatory terms that reflect- Telegraph, March 23. * * * History was made Crestina, groups that strongly opposed gay ed on his professional standing. Bennett in recent elections when two openly gay rights measures. Lively is credit with a role brought three claims against the firm in the men were elected to the lower house of Ire- in stimulating the draconian anti-gay leg- Central London Employment Tribunal, land’s Parliament. Dominic Hannigan, for- islation pending in Uganda. He has now claiming that the note was discriminatory, merly an appointed member of the upper been spreading his anti-gay propaganda in that his grievance about it was not properly house, represents Meath East, while John Moldova, claiming that banning sexual ori- investigated, and that because he was gay Lyons represents Dublin North West. The entation discrimination “puts the power of he was deprived of the regular annual salary only other openly-gay member of Parlia- the law and the government into the hands reviews conducted by the firm. The Tribu- ment, Senator David Norris, who was the of gay activists and makes people who dis- nal ruled for him on the first two grounds. plaintiff in an important European Human approve of homosexuality criminals,” or so Referring to the note, it said, “Reading the Rights case involving Ireland, is seen as a he told Radio Free Europe, according to entire passage, what is being said is that the viable candidate to become the nation’s first a March 14 article in Radio Free Europe claimant, as a gay man, is passing work to openly-gay president. Documents available on Westlaw, 2011 somebody else because they are gay and Isle of Man — The Isle of Man, a self- WLNR 5033223. not therefore for other meritorious reasons. governing British dependency located in South Korea — South Korea’s Con- This is a professional slur of the utmost the Irish Sea, has enacted a civil partner- stitutional Court ruled on March 31 that gravity.” The Tribunal’s decision was seen ship law which takes effect on April 6. It the military can ban homosexual conduct by some commentators as marking some follows the lead of the United Kingdom’s even though the nation’s laws governing progress in enforcing the law. civil partnership law, creating a legally par- civilians do not impose criminal penalties United Kingdom — The Derby High allel status to marriage for same-sex part- for such conduct. According to a report by Court ruled that city officials could refuse ners with all the legal rights, privileges and Agence France Presse, an army military to place children for foster care with a Pen- benefits of marriage. court considering a case applying the law tecostal Christian couple who asserted that Liechtenstein — One of the world’s was confronted with an argument that it their religious views against homosexuality smallest countries, has joined the trend was improper anti-gay discrimination, and should not disqualify them. The court held toward legal recognition for same-sex certified the question to the constitutional that the antidiscrimination policy of the partners. The Parliament of Liechtenstein, court, but the constitutional court voted law “should take precedence” over the right which borders Switzerland and Austria, 5-4 that the criminal law (which imposes not to be discriminated against on religious voted to establish a registered partnership a penalty of imprisonment up to one year) grounds, according to a February 28 report system for same-sex couples, which will go is constitutional “because such behavior, if on BBC News online. The ruling stirred into effect in September 2011, unless oppo- left unchecked, might result in subordi- much consternation and comment in the nents gather enough signatures to require nates being harassed by superiors in mili- British media. A.S.L. a referendum. The registered partners will tary barracks.” The AFP article does not attain a list of rights that falls short of full state whether South Korea has any policy Professional Notes equality with marriage. Adoption of this against gay people serving in the military. measure was a bit surprising in a country Uganda — There were reports in March The LGBTQ Law Association of Greater that has none of the other legislative or that the government has decided not to New York has announced its new officers policy apparatus of gay rights support — push for legislative consideration of the for 2011. Carlene Jadusingh, elected by no anti-discrimination legislation, no hate draconian Anti-Homosexuality Bill of the Board of directors to be the new presi- crime or protection, and no 2009, which had excited much adverse dent of LeGal and the LeGal Foundation, policy on parenting by same-sex couples. comment from other countries, including is a NYC attorney with an immigration This was described as the first — and so far the government of the United States. A and general civil practice, and has previous- only — gay rights measure to be enacted in cabinet sub-committee reportedly decided ly served on the Board of Directors of the the country. ILGA Europe, March 22. to put it ‘on hold’ as most of the provisions LeGal Foundation. Jadusingh, of Jamaican Moldova — The Moldovan government of the bill are already addressed in the ex- and Indian descent, is the first woman of submitted a proposed antidiscrimination isting penal code. The bill would have sub- color to serve as LeGal’s President. The law to the parliament in February that stantially ratcheted up penalties for homo- other officers of LeGal will be Laurie would forbid discrimination based on re- sexuality. Marin (1st Vice President), Paul Goetz (2nd ligion, nationality, ethnic origin, language, United Kingdom — The Employment Vice President), Caprice Bellefleur (Sec- religion, color, sex, age, disability, sexual ori- Tribunal reports a rise in claims of anti-gay retary), and Karl Riehl (Treasurer). Other entation, political opinion, or social status. discrimination, which is now illegal under officers of the LeGal Foundation will be The measure is intended to advance Mol- British workplace law. The professional Caprice Bellefleur (1st Vice President), dova’s effort to associate with the European journal Lawyer reported on March 28 Hon. Charles McFaul (Secretary), and Union. However, the inclusion of sexual about the case of a gay lawyer, Lee Bennett, Karl Riehl (Treasurer). * * * The Associa- orientation has brought protest from con- described as a “non-practising barrister at tion has also announced a major new public 70 April 2011 LESBIAN/GAY LAW NOTES service project, a monthly Housing Clinic licitor General of New York since last year, Gov. Gray Davis appointed her to the su- that will be co-sponsored with the Bronx after serving as an associate legal counsel perior court in 2003. At present, there are Community Pride Center, and staffed with in the White House from 2009 to 2010. ten openly gay or lesbian Superior Court volunteer attorneys from LeGaL. LeGaL She graduated from Cornell Law School judges in California, according to Advocate. member George Santana will chair the and clerked for Justice John Paul Stevens com’s report of Judge Morgan’s announce- clinic, and LeGaL is partnering with NY (Supreme Court) and Judge Betty Fletcher ment. A.S.L. County Lawyers Association on training (9th Circuit). She practiced law at Wilmer for clinic volunteers. * * * The Association Cutler, and taught at Fordham and NYU HIV/AIDS held its Annual Dinner on March 24, at Law Schools. If Nathan and Oetken are which time it honored Prof. Suzanne confirmed, the Southern District will have Legal Notes Goldberg and Servicemembers Legal the distinction of being the most gay fed- Defense Network (SLDN), whose Execu- eral district, as they would be joining Judge European Human Rights tive Director, Aubrey Sarvis, accepted the Deborah Batts, who was appointed by Convention Protects People Living award on behalf of the organization. President Clinton in 1993. With HIV Against Discrimination The Massachusetts LGBTQ Bar As- Bloomberg News reports that openly- sociation’s Annual Dinner will be held on gay Illinois attorney Michael McRaith, A chamber consisting of eight judges of May 6. Dr. Eliza Byard, Executive Direc- who has been serving as director of the Il- the European Court of Human Rights an- tor of the Gay, Lesbian and Straight Edu- linois Department of Insurance since be- nounced on March 10 that it had found cation Network (GLSEN), will give the ing appointed by Governor Pat Quinn in Russia to be in violation of the European keynote address. Honorees will including 2009, has been appointed to head the new Convention on Human Rights for denying retired Massachusetts Supreme Court Jus- Federal Insurance Office. The appoint- a residence permit to an Uzbeki man on the tice Margaret H. Marshall, who wrote the ment was announced by Treasury Secretary sole ground that he is infected with Hu- first decision by an American state supreme Timothy Geithner at a Financial Stability man Immunodeficiency Virus (HIV), the court to rule in favor of same-sex marriage, Oversight Council meeting in Washington pathogen associated with Acquired Immu- Laura K. Langley of Bingham McCuchen on March 17. The non-regulatory federal nodeficiency Syndrome (AIDS). Ruling LLP, and Massachusetts State Representa- office was created as part of the recently- unanimously in Case of Kiyutin v. Russia, tive Byron Rushing. enacted finance industry reform law, and Application No. 2700/10, the court found The LeGal Foundation has announced has an information-gathering and report- that this case presented an instance of im- that the Dr. M.L. “Hank” Henry Jr. Fund ing function. permissible discrimination affecting the for Judicial Internships summer interns for Kees Waaldijk, a Dutch legal academic right to private life, and awarded damages 2011 will be Jenelle DeVits (Hofstra Uni- who has occasionally contributed to Law to the applicant. versity Law School) and Colin Hedrick Notes, has been appointed by Leiden Uni- The applicant, Viktor Kiyutin, was born (Brooklyn Law School). The summer - in versity to a new endowed chair in Compar- in the Soviet Republic of Uzbekistan in terns have the opportunity to spend time in ative Sexual Orientation Law. This chair, 1971 and became an Uzbeki citizen upon the chambers of participating federal, state the first of its kind in Europe, is underwrit- the dissolution of the Soviet Union. In and local court and administrative judges ten by private donations to the University’s 2002, his brother bought land and a house over the course of the summer. The ulti- Fund, and will be based at the University’s in the Oryol Region of Russia, and the mate purpose of the internship is to build Law School located at the Hague campus. next year Viktor moved there with his half- interest among law students in future ju- In May, the Max Planck Encyclopedia of brother and their mother. Viktor quickly dicial careers. Hank Henry, for whom the Public Law will publish Dr. Waaldijk’s married a local woman and they had a program services as a memorial, served for newest work, an analysis of the protection child, who was born early in 2004. Shortly many years as Executive Director of the that international law is providing to same- after the wedding, Viktor applied to the Fund for Modern Courts, a leading court sex couples. Dr. Waaldijk has been teach- authorities for a residence permit. Under reform advocacy organization in New York ing at the Law School since 1996, having a 1995 statute, applicants for a residence City, and took a leading role in encouraging studied law in Rotterdam, lesbian and gay permit must provide documentary evidence the appointment of openly lesbian and gay studies in Amsterdam, and earned his PhD that they are free of HIV infection. The judges in New York. in Maastricht. He has guest lectured widely medical examination for his residence ap- President Obama has nominated Ali- in Europe and the U.S. plication provided Viktor with the news son J. Nathan to a seat on the U.S. District Mary Morgan, the nation’s first openly- that he was infected, which he claims not to Court for the Southern District of New lesbian judge, who was appointed to the have previously known. He was denied the York. Ms. Nathan is the third openly-gay San Francisco Municipal Court in 1981 by permit by local authorities, and the denial nominee for that court, following Daniel then (and now) Governor Jerry Brown, an- was upheld by the Oryol Regional Court. Alter, whose nomination was withdrawn nounced her retirement from the San Fran- The court’s opinion does not relate after controversy about some of his past cisco Superior Court on March 5. Judge whether Viktor then returned to Uzbeki- statements, and J. Paul Oetken, who re- Morgan served on the Municipal Court stan or remained with his family in Rus- cently had a confirmation hearing by the until 1993, when she moved to Washing- sia at that time, but reports that he applied Senate Judiciary Committee. Ms. Nathan ton, D.C., to work in the Justice Depart- anew for a temporary residence permit in has served as special counsel to the So- ment during the Clinton Administration. April 2009, which brought him to the at- LESBIAN/GAY LAW NOTES April 2011 71 tention of the Federal Migration Service, a more general requirement of a declara- this group for differential treatment on the which in turn imposed a fine of 2500 Rus- tion whether an individual has a “disease basis of their HIV status.” This meant that sian roubles for unlawful residence and or- threatening to public health” as part of the Russia would have to come up with a “par- dered him to leave within three days or be residence application process. The over- ticularly compelling justification,” and the subject to deportation. He challenged this whelming majority of Member States do court found that the justifications argued in court, but the Severniy District Court not impose a disqualification for residence by the government were insufficient. of Oryol rejected his appeal on August 13, permits upon HIV-positive individuals. The court said that Russia failed to show 2009, finding that due to his HIV status his The court needed to determine whether how its national security and public health applicant was properly rejected. He ap- being HIV-positive could be considered a needs were advanced by denying a residence pealed to the Oryol Regional Court, unsuc- “status” for purposes of the non-discrim- permit to Viktor. The government’s own cessfully, and then appealed to the Euro- ination policy articulated in Article 14 of position was that he could continue to pean Human Rights Court in Strasbourg. the Convention. Article 14 has a list of live in Russia with his family so long as he The 1995 Russian statute, called The prohibited grounds which is non-exhaus- stayed no more than 90 consecutive days, so HIV Prevention Act, apparently predates tive, as it extends to “other status” as a basis clearly keeping him out was not the issue. Russia’s decision to become party to the of discrimination. Reviewing recent histo- The court noted that “the mere presence of European Convention. As the court cites ry, the court found that persons living with an HIV-positive individual in a country is no prior precedent on point, it appears that HIV have been treated categorically in not in itself a threat to public health” be- this case presented a question of first im- adverse ways, such that international bod- cause of the lack of casual transmission of pression concerning HIV-discrimination ies had adopted statements condemning the virus. in the context of emigration into a country discrimination on this basis. “Accordingly, Inasmuch as Russia places no HIV- and granting the privilege of permanent the Court considers that a distinction made related restrictions on tourists and busi- residence to a non-citizen. The court was on account of one’s health status, including ness travellers, and doesn’t impose HIV careful to point out that countries do re- such conditions as HIV infection, should testing on Russian nationals leaving and tain the right to control immigration and be covered — either as a form of disability entering the country, “the Court sees no residence, but that the Convention imposes or alongside with it — by the term ‘other explanation for a selective enforcement of a supervening obligation not to engage in status’ in the text of Article 14 of the Con- HIV-related restrictions against foreigners unjustifiable discrimination in wielding vention.” who apply for residence in Russia but not that authority. Article 14 adopts the general principle against the above-mentioned categories, The government argued that as a per- of non-discrimination, but is only action- who actually represent the great majority son who lacked a residence permit, Viktor able with respect to particular rights spelled of travellers and migrants,” the Court con- would be able to stay in Russia for periods out elsewhere in the Convention. An ap- tinued. “There is no reason to assume that of 90 days, so long as he left and spent time plicant must show that he is in a position they are less likely to engage in unsafe be- outside the country before re-entering for analogous to others similarly situated, and havior than settled migrants.” The Court another 90 days, and so on. The govern- that the discrimination against him does stated its “great concern” with Russia’s sub- ment maintained that the statute is justified not lie within the “margin of appreciation” mission that Viktor could circumvent the by public health concerns about the spread accorded to Member States in pursuing rules without having a residency permit by of HIV. their policy interests. In this case, Article limiting the length of his stays, saying that The court found that in maintaining this 8, respect for private life, came into play. this “casts doubt on the genuineness of the policy Russia was out of step with the pol- Given his marriage to a Russian woman Government’s public health concerns relat- icy pronouncements on HIV by interna- and the residence of his family members ing to the applicant’s residence in Russia.” tional bodies and the actual policies of the in Russia, the court found that Viktor oc- Indeed, the main concern may have been other countries that are parties to the Con- cupied a position analogous to other aliens that as a permanent legal resident, Viktor vention. According to a 2009 UNAIDS seeking residence permits, so the issue was would have a claim on public health ser- survey, “124 countries, territories and areas whether Russia had an objective, reason- vices, but the Court observed that because worldwide have no HIV-specific restric- able justification for treating him different- Viktor would be a resident alien rather than tions on entry, stay or residence,” wrote the ly from others who are not HIV-infected. a Russian national, he would have to pay court. The other 52 countries surveyed did In a process somewhat analagous to the for his health care expenses, and thus “the impose various restrictions. However, nar- U.S. constitutional caselaw on “suspect clas- risk that he would represent a financial bur- rowing the focus to Member States of the sifications” and “heightened scrutiny” in the den on Russian health care funds was not Council of Europe, it appears that all mem- context of equal protection, the European convincingly established.” The court also ber states allow visas and short-term stays Court will adjust the “margin of apprecia- pointed out that the government’s policy to HIV-positive people. Three states (Ar- tion” according to the basis of discrimina- was not particularly well suited to combat- menia, Moldova and Russia) will deport tion. In this case, the Court “considers ing the spread of HIV, since it would deter foreigners who are found to be HIV-pos- that people living with HIV are a vulner- migrants from getting tested and seeking itive, and these and three other states (An- able group with a history of and treatment and could lead to complacency in dorra, Cyprus and slovakia) require proof stigmatisation and that the State should be the general public, who could be led to be- that an individual is HIV-negative before afforded only a narrow margin of apprecia- lieve that those allowed to stay in the coun- issuing a residence permit. Lithuania has tion in choosing measures that single out 72 April 2011 LESBIAN/GAY LAW NOTES try were all HIV-negative and that AIDS disabling conditions that are controlled or he requested at the new location, which was a “foreign” problem. corrected by medication or assistive devices included, for example, a motorized move- The Russian constitutional court had are not disabilities under the statute, a con- able desk to enable Haynes to stand while one prior ruling from 1996, when it indi- clusion with which a majority of Congress working to combat Haynes’ muscular at- cated that HIV-related decisions should be emphatically disagreed.) Litigation under rophy, and a workspace located close to a made on a case by case basis, upon which the ADA by people living with HIV had restroom. Viktor relied in bringing this case. The produced wildly varying results, due to the After approximately four months at the court observed that this prior ruling seems Supreme Court’s holding that the determi- new location, Haynes submitted a medi- to have had little effect, since Viktor was nation whether a person has a disability is cal evaluation from his treating physician denied categorically without any consider- to be made on a case-by-case basis depend- stating that he required a less stressful job ation of his actual health status and family ing on whether the alleged impairment environment as an accommodation for his situation, or at least none reflected in the they suffered actually substantially limited medical needs. After AT&T submitted the opinions issued by the prior tribunals in his their performance of any of a rather limited evaluation for two peer reviews, with the fi- case. list of major life activities, taking into ac- nal one also concluding that a less stressful The court stated its conclusion: “The count any medications or assistive devices work situation was required, Haynes was Government overstepped the narrow mar- they were using. The regulations should placed on a thirty-day period of paid leave gin of appreciation afforded to them in the substantially simplify the determination of and was encouraged to apply for a more instant case. The applicant has therefore whether a plaintiff ’s situation is covered by suitable position in the company. been a victim of discrimination on account the non-discrimination requirements of the Haynes applied for several positions but of his health status, in violation of Ar- statute. 2011 BNA Daily Labor Report No. received no offers. Haynes was then placed ticle 14 of the Convention taken together 57, March 24, 2011. A.S.L. on a second leave, this time an unpaid thir- with Article 8.” The court awarded Viktor ty-day period of leave, which also expired 15,000 euros for damages and 350 euros for Pennsylvania District Court without any offers of employment. AT&T his expenses in connection with the case, in Raises the Bar on HIV Disability then terminated Haynes’ employment. which he was represented by Ms. L. Komo- Discrimination Claims Haynes asserted claims of disability- lova, a lawyer practicing in Oryol, Russia. based discrimination under the Americans A.S.L. In Haynes v. AT&T Mobility, LLC, 2011 with Disabilities Act (ADA) and its state WL 532218 (Feb. 8, 2011), the U.S. Dis- law counterpart, the Pennsylvania Human EEOC Issues Final Regulations trict Court for the Middle District of Relations Act. AT&T moved for summary Under Americans With Disabilities Pennsylvania ruled against an individual judgment, a motion referred to a magistrate Act Amendments of 2008 living with HIV who had brought a claim judge. The relevant issue before the district against AT&T, his former employer, for court concerned the magistrate judge’s de- On March 24, the U.S. Equal Employment failure to make an accommodation in the nial of AT&T’s summary judgment mo- Opportunity Commission announced its form of reassignment to a new position. tion concening Haynes’ disability discrimi- final regulations interpreting the Ameri- In awarding summary judgment to nation claim based on AT&T’s failure to cans with Disabilities Act Amendments of AT&T, the court emphasized the failure of reassign. 2008, a measure passed in the waning days the plaintiff to provide evidence that he was The district court agreed with AT&T of the Bush Administration in response to “better qualified” than other candidates for that the magistrate judge erred in fram- almost two decades of accumulated court the new position or even qualified at all to ing the dispositive question. Specifically, rulings that were widely seen as having mis- perform the essential duties of the job with the court endorsed the view that the “rel- construed Congress’s original intentions reasonable accommodation. The decision evant question is not simply whether reas- in passing the ADA. The new regulations, appears to impose a tall hurdle for disabil- signment to a vacant position is a reason- which will be codified at 29 CFR Part 1630 ity discrimination claims premised on an able accommodation, but rather, whether and become effective 60 days after formal employer’s failure to reassign an employee reassignment to a vacant position — over publication, are intended to adopt a broad to a new position. a more qualified applicant when the em- view of coverage under the ADA, contrary The plaintiff, Mikhail Haynes, was for- ployer has a policy of hiring only the most to the narrow view espoused by the major- merly employed by AT&T as a customer qualified candidate — is a reasonable- ac ity of the Supreme Court, not limiting cov- service representative at a call center in commodation ‘in the run of cases.’” erage by reference to the estimated number California. As a result of physical challeng- Thus, the district court, saying that it was of people living with disabilities at the time es associated with his HIV status, Haynes applying the test articulated in U.S. Air- the law was originally passed two decades required several accommodations in order ways v. Barnett, 535 U.S. 391 (2002), held ago. Among other things, the regulations to perform his job duties, all of which were that the magistrate judge erred by putting make clear that people living with HIV provided with little trouble during his ten- aside the question of whether other appli- should be construed to qualify for cover- ure in California, which began in late 2000. cants were “better qualified” than Haynes. age as a person with a disability, due to the In September 2006, Haynes transferred In other words, the district court ruled that effect of HIV infection on the immune to a call center in Pennsylvania. Haynes absent “special circumstances,” never artic- system in its non-medicated state. (The was initially unsatisfied with the timetable ulated by Haynes, the requested accommo- Supreme Court had ruled that potentially for or the quality of the accommodations LESBIAN/GAY LAW NOTES April 2011 73 dation in the instant case — a reassignment terviewed with be asked to submit a writing Aloni, Erez, Incrementalism, Civil to a new position — was not reasonable. sample and three references. Unions, and the Possibility of Predicting Le- The court’s analysis is notable on two Lambda Legal, the largest national gal Recognition of Same-Sex Marriage, 18 fronts. First, U.S. Airways v. Barnett con- LGBT public interest law firm, has an- Duke J. Gender L. & Pol’y 105 (Fall 2010). cerned the reassignment of an employee to nounced an opening for the position of se- Anderson, Chase D., A Quest for Fair and a new position where such reassignment nior staff attorney in its Western Regional Balanced: The Supreme Court, State Courts, would violate a seniority system in place Office in Los Angeles. Applicants should and the Future of Same-Sex Marriage Re- at the employer. In that instance, accord- have considerable experience (at least ten view After Perry, 60 Duke L.J. 1413 (2011). ing to the Barnett court, a reassignment is years) in litigation and public speaking, and Araiza, William D., Don’t Ask Don’t Tell not a reasonable accommodation in ordi- be capable of considerable independent ac- and Its Impact on Gay Rights, 2011 Aspatore nary cases. The question of seniority, how- tion and ability to manage and supervise Special Rep. 2 (March 2011). ever, is generally an objective evaluation not staff and cooperating attorneys. The appli- Berg, Nicole C., Designated Beneficiary typically subject to dispute. The question of cation can be made by letter or email to: Agreements: A Step in the Right Direction for whether “better qualified” candidates exist, Jamie Farnsworth, Lambda Legal, 3325 Unmarried Couples, 2011 Univ. Ill. L. Rev. in contrast, seems destined to be a highly Wilshire Blvd., Suite 1300, Los Angeles, 267. fact-specific inquiry capable of significant CA 90010; [email protected]. Blocher, Joseph, Reverse Incorporation of dispute. As a result, similarly situated plain- The envelope should state “senior staff at- State Constitutional Law, 84 S. Cal. L. Rev. tiffs may face a greater burden in the future. torney” and/or the email should have that 323 ( Jan. 2011)(suggesting that federal Second, the court emphasized that it phrase in its subject line. Anyone applying courts should consider state constitutional could dispose of Haynes’ claims based on as a result of seeing this announcement rulings and not just the other way around). one factor alone: his failure to meet his bur- should indicate that this is where they saw Boyden, Bruce E., Constitutional Safety den of demonstrating that he was qualified it! Much detailed information about the Valve: The Privileges or Immunities Clause to perform the essential duties of the vacant position and qualifications can be found on and Status Regimes in a Federal System, 62 position with reasonable accommodation. Lambda Legal’s website in the “about-us” Ala. L. Rev. 111 (2010) (Argues that the Though emphasizing the ‘narrowness’ of folder under “jobs.” Privilege & Immunities Clause, not the its holding elsewhere, the court’s consid- Gay & Lesbian Advocates & Defend- Full Faith and Credit Clause, is the ap- eration of issues beyond this limited ques- ers, New England’s LGBT public interest propriate vehicle for dealing with interstate tion — e.g., its consideration of the best law firm, has announced an opening for a same-sex marriage recognition issues). qualified policy — seems curious at best. full-time staff attorney whose main role Bulfer, Dan J., How California Got It At worst, it may serve to block otherwise will be to deal with legal issues involving Right: Mining In re Marriage Cases for the viable disability discrimination claims from LGBTQ youth. Admission to practice, Seeds of a Viable Federal Challenge to Same- achieving success. Brad Snyder preferably in a New England jurisdiction, is Sex Marriage Bans, 41 Cal. W. Int’l L.J. 49 a prerequisite. Familiarity with LGBT and (Fall 2010). PUBLICATIONS HIV issues, strong research, writing, ana- Buzuvis, Erin E., Transgender Student- lytical, advocacy and public speaking skills Athletes and Sex-Segregated Sport: Devel- NOTED & are needed for this position. Send a con- oping Policies of Inclusion for Intercollegiate ANNOUNCEMENTS fidential resume, cover letter and writing and Interscholastic Athletics, 21 Seton Hall J. sample to Gary Buseck, GLAD, 30 Winter Sports & Ent. L. 1 (2011). Movement Positions St., Suite 800, Boston MA 02108, or email Cox, Barbara J., Why Appellate Courts to [email protected]. Applicants will be Have Rejected the Argument That the Defense Immigration Equality has announced an considered on a rolling basis through May of Marriage Act Trumps the Parental Kid- opening for a staff attorney to be located 20, 2011, or until the position is filled. napping Prevention Act, 41 Cal. W. Int’l L.J. either in New York City or Washington, All of the LGBT rights public interest 189 (Fall 2010). D.C. The attorney will lead the organiza- organizations are committed to staff diver- Crocker, Thomas P., The Political Fourth tion’s legal work on behalf of lesbian and sity and welcome applications from people Amendment, 88 Wash. U. L. Rev. 303 (2010) gay bi-national couples. Applicants must be of all different backgrounds. (uses Lawrence v. Texas to argue for a more admitted to practice, with a demonstrated expansive view of liberty protected by the commitment to LGBT rights issues, and LGBT & RELATED ISSUES 4th Amendment). — preferably — with experience in im- Dale, Danielle R., Gender Identity Pro- migration law and administrative law. For Adler, Libby, Appending Transgender Equal tection: The Inadequacy of Shareholder Action a full description of the position and eli- Rights to Gay, Lesbian and Bisexual Equal to Amend Corporate Employment Discrimi- gibility requirements, consult Immigration Rights, 19 Colum. J. Gender & L. 595 nation Policies, 36 J. Corp. L. 469 (Winter Equality’s website. Applications should (2010) (Symposium: Gender on the Fron- 2011). be submitted by email to jobs@immigra- tiers — Confronting Intersectionalities). De La Torre, Annette, Is Ze an Ameri- tionequality.org with Staff Attorney in the Allen, Anita L., Privacy Torts: Unreliable can or a Foreigner? Male or ? Ze’s subject line. They should include a detailed Remedies for LGBT Plaintiffs, 98 Calif. L. Trapped!, 17 Cardozo J. L. & Gender 389 cover letter and resume. Those who are in- Rev. 1711 (Dec. 2010). (2011). 74 April 2011 LESBIAN/GAY LAW NOTES

Eichner, Maxine, Beyond Private Order- Isaac, Kendall D., Familial Status Dis- Myers, Richard S., The Right to - Con ing: Families and the Supportive State, 23 J. crimination: Will Employment Law Build science and the First Amendment, 9 Ave Ma- Am. Acad. Matrim. Law. 305 (2010). upon What Housing Law Started?, 36 Emp. ria L. Rev. 123 (Fall 2010) (why the First Eltis, Karen, The Judicial System in the Rel. L. J. No. 4, 50 (Spring 2011). Amendment does not privilege religiously- Digital Age: Revisiting the Relationship Be- Jerke, Bud W., Ruralism, 34 Harv. observant health care providers to deny tween Privacy and Accessibility in the Cyber J. L. & Gender 259 (Winter 2011). care to patients). Context, 56 McGill L.J. 1 (2011)(Are you Johnson, Jaime, Recognition of the Non- Nejaime, Douglas, Winning Through outing your clients when you e-file litiga- human: The Psychological Minefield of Trans- Losing, 96 Iowa L. Rev. 941 (March 2011) tion papers?). gender Inequality in the Law, 34 L. & Psy- (Explores how social movements advance Estin, Ann Laquer, Sharing Governance: chology Rev. 153 (2010). their agenda’s by using courtroom losses Family Law in Congress and the States, 18 Joslin, Courtney G., Searching for Harm: as mobilizing tools; uses examples from Cornell J.L. & Pub. Pol’y 267 (Spring Same-Sex Marriage and the Well-Being of LGBT rights litigation). 2009). Children, 46 Harv. C.R.-C.L. L. Rev. 81 Nice, Julie A., How Equality Constitutes Farra, Adam, Theories of Discrimination (Winter 2011). Liberty: The Alignment of CLS v. Martinez, & Gay Marriage, 69 Md. L. Rev. Endnotes Kamatali, Jean-Marie, The U.S. First 38 Hastings Const. L. Q. 631 (2011). 1 (2010). Amendment Versus Freedom of Expression Nicolas, Peter, Common Law Same-Sex Garmon, Teresa Marie, The Panic De- in Other Liberal Democracies and How Each Marriage, 43 Conn. L. Rev. 931 (Feb. 2011) fense and Model Rules Common Sense: A Influenced the Development of International (Three jurisdictions that authorize- mar Practical Solution for a Twenty-First Cen- Law on Hate Speech, 36 Ohio Northern riages for same-sex couples — Iowa, New tury Ethical Dilemma, 45 Ga. L. Rev. 621 Univ. L. Rev. 721 (2010). Hampshire, and the District of Columbia (Winter 2011) (proposes amending Model Knauer, Nancy J., Gay and Lesbian El- — also allow common law marriages. This Rules of Professional Responsibility to al- ders: Estate Planning and End-of-Life De- article argues that same-sex couples are en- low attorneys to withdraw from criminal cision Making, 12 Fla. Coastal L. Rev. 163 titled to form common-law marriages in defense representation if they have moral (Fall 2010). those jurisdictions and discusses the pros objections to the client’s preferred defen- Konnoth, Craig, Section 5 Constraints and cons of same-sex couples using this de- sive strategy, using “homosexual panic” de- on Congress Through the Lens of Article III vice to form marital relationships). fense as an example). and the Constitutionality of the Employment Novak, Benjamin David, Freeing Jane: Hansen, Mark, And Baby Makes Liti- Non-Discrimination Act, 120 Yale L.J. 1263 The Right to Privacy and the World’s Oldest gation, 97 ABA Journal No. 3, 52 (March (March 2011). Profession, 66 Nat’l Law. Guild Rev. 137 2011) (legal issues surrounding surrogate Kosbie, Jeffrey, Misconstructing Sexuality (Fall 2009). parenting). in Same-Sex Marriage Jurisprudence, 6 NW Olson, Christine L., Transgender Foster Harbeck, Hon. Dorothy A., Asking and J. L. & Soc. Pol’y 238 (Spring 2011). Youth: A Forced Identity, 19 Tex. J. Women Telling: Identity and Persecution in Sexual Kozell, Rick, Striking the Proper Balance: & L. 25 (2009). and/or Gender Orientation Asylum Claims Articulating the Role of Morality in the Leg- Panel Discussion, Don’t Ask, Don’t Tell: — Immutable Characteristics and Concepts of islative and Judicial Processes, 47 Am. Crim. Beyond the Log Cabin Republicans Injunction Persecution Under U.S. Asylum Law, 25 Geo. L. Rev. 1555 (Fall 2010). and the Defense Authorization Act, 1 Am. U. Immigr. L.J. 117 (Fall 2010). Lau, Holning, and Charles Q. Strohm, Labor & Emp. F. 127 (2011). Herchenbach, Nellie, Giving Back the The Effects of Legally Recognizing Same-Sex Piar, Daniel F., Keepers of the New Cov- Other Mommy: Addressing ’s Failure Unions on Health and Well-Being, 29 U. enant: The Puritan Legacy in American Con- to Recognize Legal Parent Status Following Minn. L. Rev. 107 (Winter 2011). stitutional Law, 49 J. Cath. Legal Stud. 143 the Same-Sex Relationship Dissolution, 44 Mahaffey, Leslie Cooper, “There Is (2010). Fam. L.Q. 429 (Fall 2010). Something Unique . . . about the Govern- Pusey, Lisa, Book Review, Gender Ste- Hogue, L. Lynn, The Constitutional Ob- ment Funding of the Arts for First Amend- reotyping: Transnational Legal Perspectives, ligation to Adjudicate Petitions for Same-Sex ment Purposes”: An Institutional Approach to by Rebecca J. Cook and Simon Cusack, 11 Divorce and the Dissolution of Civil Unions Granting Government Entities Free Speech Melbourne J. Int’l L. 531 (Nov. 2010). and Analogous Same-Sex Relationships: Pro- Rights, 60 Duke L.J. 1239 (Feb. 2011). Ristroph, Alice, Third Wave Legal Moral- legomenon to a Brief, 41 Cal. W. Int’l L.J. McElroy, Lisa T., Sex on the Brain: Ado- ism, 42 Ariz. St. L.J. 1151 (Winter 2011- 229 (Fall 2010). lescent Psychosocial Science and Sanctions for 2011). Hopkins, C. Quince, Introduction: Fam- Risky Sex, 34 N.Y.U. Rev. L. & Soc. Change Ritter, Michael J., Teaching Tolerance: A ily, Life, and Legacy: Planning Issues for the 708 (2010). Day Would do a Student Body Lesbian, Gay, Bisexual and Transgender Moghaddam, Amanda, Popular Politics Good, 19 Tex. J. Women & L. 59 (Fall 2009). Communities, 12 Fla. Coastal L. Rev. 1 (Fall and Unintended Consequences: The Puni- Rogers, John, The Defense of Marriage 2010)(symposium introduction). tive Effect of Sex Offender Residency Statutes Act (DOMA) and California’s Struggle With Infanti, Anthony C., Decentralizing From an Empirical Perspective, 40 South- Same-Sex Marriage, 23 Regent U. L. Rev. Family: An Inclusive Proposal for Individual western L. Rev. 223 (2010). 97 (2010-11) (Argues that denial of same- Tax Filing in the United States, 2010 Utah Morrissey, Joseph F., Lochner, Lawrence, sex marriage does not violate 14th Amend- L. Rev. 605. and Liberty, 27 Georgia St. Univ. L. Rev. ment equal protection and that the courts 609 (Spring 2011). should leave the question of marriage to LESBIAN/GAY LAW NOTES April 2011 75

Congress and the state legislatures. Also Wallace, Jason A., Bullycide in American EDITOR’S NOTE: contends that Congress has power under Schools: Forging a Comprehensive Legislative the Commerce Clause to adopt a national Solution, 86 Ind.L.J. 735 (Spring 2011). All points of view expressed in Lesbian/ definition of marriage, but that federalism Wardle, Lynn D., Protection of Health- Gay Law Notes are those of identified concerns justify leaving that policy question Care Providers’ Rights of Conscience in writers, and are not official positions of the to the states). American Law: Present, Past and Future, 9 Lesbian & Gay Law Association of Great- Sabatello, Maya, Advancing Transgender Ave Maria L. Rev. 1 (Fall 2010) (Why the er New York or the LeGaL Foundation, Family Rights Through Science: A Proposal for law should privilege religiously-observant Inc. All comments in Publications Noted an Alternative Framework, 33 Hum. Rts. Q. people to deny health care to patients in are attributable to the Editor. Correspon- 43 (Feb. 2011). need). dence pertinent to issues covered in Les- Saunders, William L., Neither by Treaty, Woods, Dan, Consequences and Oppor- bian/Gay Law Notes is welcome and will Nor by Custom: Through the Doha Declara- tunities Springing From Don’t Ask Don’t be published subject to editing. Please ad- tion, the World Rejects Claimed International Tell’s Repeal, 2011 Aspatore Special Rep. 2 dress correspondence to the Editor or send Rights to Abortion and Same-Sex Marriage, (March 2011) (Woods is counsel for Log via e-mail. Affirming Traditional Understandings of Cabin Republicans in the pending federal Human Rights, 9 Georgetown J. L. & Pub. court constitutional challenge to DADT). Pol’y 67 (Winter 2011). Yecies, Sharon, Sexual Orientation, Dis- Seidman, Louis Michael, Our Unsettled crimination, and the Universal Declaration Ninth Amendment: An Essay on Unenumer- of Human Rights, 11 Chi. J. Int’l L. 789 ated Rights and the Impossibility of Textual- (Winter 2011). ism, 98 Calif. L. Rev. 2129 (Dec. 2010). Sherry, Suzanna, The Four Pillars of Con- Specially Noted stitutional Doctrine, 32 Cardozo L. Rev. 969 ( January 2011) (asserts that Lawrence West Academic Publishing has announced v. Texas is “impeccable” when evaluated the fourth edition of Cases and Materials according to her “four pillars” of constitu- on Sexual Orientation and the Law, by Wil- tional doctrine). liam Rubenstein, Carlos A. Ball, and Jane Simson, Gary J., Religion, Same-Sex S. Schachter, to be published in May 2011. Marriage, and the Defense of Marriage Act, Foundation Press has announced the third 41 Cal. W. Int’l L.J. 35 (Fall 2010). edition of Sexuality, Gender and the Law, Smith, George P., Regulating Morality by William N. Eskridge, Jr., and Nan D. Through the Common Law and Exclusion- Hunter, also to be published in May 2011. ary Zoning, 60 Catholic Univ. L. Rev. 403 Symposium on DOMA and Issues (2011). Concerning Federalism and Interstate Strasser, Mark, Public Policy, Same-Sex Recognition of Same-Sex Relationships, in Marriage, and Exemptions for Matters of the Fall 2010 issue of the California West- Conscience, 12 Fla. Coastal L. Rev. 135 (Fall ern International Law Journal. Individual 2010). articles noted above. Sung, William C., Taking the Fight Back to Title VII: A Case for Redefining “Because HIV/AIDS & RELATED ISSUES of Sex” to Include Gender Stereotypes, Sexual Orientation, and Gender Identity, 84 S.Cal. Ahmed, Aziza, Feminism, Power, and Sex L. Rev. 487 (Jan. 2011). Work in the Context of HIV/AIDS: Conse- Todd, Ross, Marriage Brokers, 33 Amer- quences for Women’s Health, 34 Harv. J. L. & ican Lawyer No. 3, March 2011, p. 64 Gender 225 (Winter 2011). (“Why did two former adversaries pair up Ashford, Chris, Barebacking and the ‘Cult to take on California’s Prop 8? Ted Olson of Violence’: Queering the Criminal Law, 74 and David Boies make their case.) J. Crim. L. (UK) 339 (2010). Valentine, Sarah, When Your Attorney Is Bennett, A. Dean, and Scott E. Ran- Your Enemy: Preliminary Thoughts on Ensur- dolph, Is Everyone Disabled Under the ing Effective Representation for Queer Youth, ADA? An Analysis of the Recent Amendments 19 Colum. J. Gender & L. 773 (2010). and Guidance for Employers, 36 Emp. Rel. Varona, Anthony E., Taking Initiatives: L.J. No. 4, 3 (Spring 2011). Reconciling Race, Religion, Media and De- Koehler, Pamela, Using Disability Law to mocracy in the Quest for Marriage Equality, Protect Persons Living with HIV/AIDS: The 19 Colum. J. Gender & L. 805 (2010). Indian and American Approach, 19 J. Trans- national L & Pol’y 401 (Spring 2010).