LESBIAN/GAY LAW NOTES May 2011 77

Arkansas Supreme Court Strikes Down Adoption/Foster Parent Ban

In Arkansas Department of Human Services The plaintiffs alleged, among other As an initial matter on appeal, the Ar- v. Cole, 2011 Ark. 145, 2011 WL 1319217 things, that Act 1 violated both the Due kansas Supreme Court disposed of the (April 7, 2011), the Arkansas Supreme Process and Equal Protection Clauses of State’s and FCAC’s contention that the Court struck down as unconstitutional an the 14th Amendment of the U.S. Consti- right to adopt or serve as a foster parent is Arkansas law that prohibited unmarried tution and similar provisions of the Ar- not a fundamental right under the Arkan- individuals who were living together as in- kansas Constitution. The State moved to sas Constitution. The State and FCAC had timate partners from adopting children or dismiss the claims. On the same day of the argued that, unlike the former Arkansas serving as foster parents. The ruling, which motion, the Family Council Action Com- sodomy law declared unconstitutional by overturns a law enacted pursuant to a ballot mittee (“FCAC”), which sponsored Act 1, the same court, Act 1 should survive scru- initiative approved in 2008 by fifty-seven along with its President, moved successfully tiny because it prescribed only cohabitation percent of Arkansas’ voters, represents a to intervene. as opposed to private, consensual noncom- major victory for LGBT rights advocates. The circuit court rejected the State’s mercial sexual conduct. The court refused Associate Justice Robert L. Brown wrote motion to dismiss concerning all but one to endorse the artificial distinction offered the opinion for the court. count of the complaint; after discovery the by the State and FCAC. The ballot initiative, referred to as the parties moved for summary judgment. The Instead, the court noted that the words Arkansas Adoption and Foster Care Act circuit court granted plaintiffs’ motion for of Act 1 “clearly make the ability to become of 2008 or “Act 1,” had been in effect since summary judgment on one count and de- an adoptive or foster parent conditioned January 1, 2009. Act 1 barred an individual clared the law unconstitutional under the on the would-be parent’s sexual relation- from adopting or serving as a foster par- Arkansas Constitution. ship.” In other words, Act 1 clearly raised ent if that individual is “cohabiting with a Specifically, the circuit court determined the same type of constitutional concerns at sexual partner outside of a marriage that is that Act 1 infringes upon the fundamental issue in the prior sodomy cases and penal- valid under the Arkansas Constitution and right to privacy guaranteed under the Ar- ized all couples who cohabit and engage in the laws of this state.” Act 1 further pro- kansas Constitution as it “significantly bur- sexual relations by denying them the ability vided that the “public policy of the state is dens non-marital relationships and acts of to have children through adoption or foster to favor marriage as defined by the consti- sexual intimacy between adults because it care. tution and laws of this state over unmarried forces them to choose between becoming a The court also rejected the argument ad- cohabitation with regard to adoption and parent and having any meaningful type of vanced by the State and FCAC that adopt- foster care.” intimate relationship outside of marriage.” ing and fostering children are “privileges” Though the law thus applied equally, on Accordingly, in reaching its decision, the as opposed to “rights” in themselves. The its face, to all intimate unmarried partners, circuit court determined that strict or court turned to U.S. Supreme Court prec- it was clearly designed to prevent same-sex heightened scrutiny applied to its analysis edent in rejecting that distinction and re- partners from serving as adoptive or foster of Act 1. iterated that constitutional rights do not parents. The circuit court, however, granted the turn on such characterizations. An action challenging the law, which State’s and FCAC’s motion to dismiss and The court also went a step further in culminated with the present decision, was for summary judgment on all the claims as- likening the present case to one addressed brought by a group of plaintiffs including serted under the U.S. Constitution and all previously by the U.S. Supreme Court, unmarried adults who wish to foster or other claims under the Arkansas Constitu- which involved the right to religious free- adopt children in Arkansas, adult parents tion, which the court determined were no dom. In a citation sure to infuriate con- who wish to direct the adoption of their longer necessary to reach. The State and servatives who backed Act 1, the court biological children in the event of their FCAC appealed and the plaintiffs cross- cited as instructive the Supreme Court’s incapacitation or death, and the biological appealed. decision in Sherbert v. Verner, 415 U.S. 651 children of those parents. (1963). Sherbert concerned a claim for

LESBIAN/GAY LAW NOTES May 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., San Francisco; 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 78 May 2011 LESBIAN/GAY LAW NOTES unemployment compensation filed by an ing celibate and invite the State to regulate son’s birth certificate. Adar v. Smith, 2011 individual whose religious faith prevented such conduct — that is, where once the WL 1367493. This decision, the balance of her from working on Saturdays, which led threat was arrest and prosecution for inti- which holds that violations of the Full Faith both to her discharge and to her inability mate conduct now it would be the denial of and Credit Clause may not be redressed in to find new employment. In reversing the the right to adopt or foster a child. federal district court via 42 USC § 1983, lower curt’s determination that rejected the Finally, the court addressed head-on the creates a circuit split. The Tenth Circuit has plaintiff ’s claim that the determination of express statement in Act 1 that it is in the previously permitted a full faith and credit non-eligibility for unemployment benefits best interest of the child to be reared in claim to be brought pursuant to § 1983 in under such circumstances did not violate homes where adoptive or foster parents are Finstuen v. Crutcher, 496 F3d 1139 (2007), her freedom of religion, the Supreme Court not cohabitating outside of marriage. The which struck down an Oklahoma statute held that the right to free exercise of reli- court cited repeated examples of the State’s that prohibited issuance of birth certificates gion was burdened because the law forced and FCAC’s own witnesses testifying that in similar circumstances to this case. her to choose between her religious obser- they did not believe that Act 1’s categori- The plaintiff-appellants, represented by vance and her work. cal ban promoted the welfare interest of Lambda Legal, are Oren Adar and Mickey Likening the choice presented here to the child. Put another way, such witnesses Smith, the parents, and J.C.A.-S., their prospective adoptive or foster care parents conceded that there are instances in which son. The defendant-respondent is Dar- who are unmarried to the choice presented children would be best served by being lene Smith, the Louisiana State Registrar. in Sherbert, the Justice Brown wrote: “Simi- placed with such parents. J.C.A.-S. was born in Shreveport, Louisi- lar to conditioning compensation benefits The court ultimately affirmed the circuit ana, and Adar and Smith adopted him in in Sherbert on foregoing religious rights, the court’s decision and declined to reach, be- New York. After the adoption was made condition placed on the privilege to foster cause it was unnecessary to do so, all other final, Adar and Smith presented a duly au- or adopt thwarts the exercise of a funda- claims raised on the cross-appeal. thenticated copy of the NY adoption decree mental right to sexual intimacy in the home All told the decision is a devastating cri- to the Louisiana Registrar, requesting that free from government intrusion under the tique of the false distinctions and assump- the Registrar issue a corrected birth cer- Arkansas Constitution.” tions offered by the Act’s supporters about tificate that accurately lists them as J.C.A.- The court termed this a “pernicious the quality of unmarried couples’ relation- S.’s parents and otherwise records his true choice,” and agreed with the circuit court ships and the best interests of children in name. Adar and Smith and their son live that Act 1 implicated the fundamental need of homes. The decision, by placing in Florida. Their only contact with Loui- right of privacy and that the burden im- its analysis squarely in the tradition of the siana involves their request for a birth cer- posed by the State is direct and substantial. right to privacy as articulated in prior sod- tificate listing their son’s legal parents. The Accordingly, the court similarly applied the omy statute cases, and by its analogy to a Registrar rejected their request, stating “[w] heightened-scrutiny standard and found U.S. Supreme Court case concerning the e are not able to accept the New York adop- the Act’s categorical ban against all cohab- fundamental right to free exercise of reli- tion judgment to create a new birth record iting couples engaged in sexual conduct, gion, seems a powerful indication that the for [ J.C.A.-S.].” The Registrar based this not to be narrowly tailored or the least re- court may be skeptical of efforts to estab- conclusion upon the rationale that “Loui- strictive means available to serve the State’s lish the same ban through other means. siana law allows only single individuals and compelling interest of protecting the best The victorious plaintiffs were represent- married couples (1) to adopt (2) in Louisi- interest of the child. ed by a team of attorneys from the AC- ana, and that this rule should control who In reaching its decision, the court also LU’s LGBT & AIDS Project, the ACLU may be listed as the parents of an adopted disposed of the State’s and FCAC’s efforts in Arkansas, and attorneys with Sullivan child on his Louisiana birth certificate, ir- to liken the ban to non-cohabitation agree- & Cromwell and Williams & Anderson. respective of his state of adoption.” ments that sometimes accompany child Brad Snyder Adar and Smith then filed suit in federal custody orders. The court, reiterating the district court. They made two claims under need for case-by-case determinations made LGBT LEGAL NEWS § 1983: (1) that the Registrar violated the in the best interest of the child in such mat- Full Faith and Credit Clause by failing to ters, noted that the blanket ban is premised AND NOTES accept the adoption decree because it was on the “bald assumption” that in all cases held by an unmarried couple; and (2) that it is never in the best interest of the child A Divided En Banc Fifth Circuit the Registrar’s refusal violated the Equal to be placed with unmarried cohabitating Dismisses Gay Couple’s Suit to Protection Clause by (a) impermissibly partners. Amend Adoptive Child’s Birth classifying Adar and Smith based upon In further assessing the burden imposed Certificate their sexual orientation and marital status; by Act 1, the court again likened it to the and (b) impermissibly classifying J.C.A.-S. former criminal sodomy statute, noting On April 12, 2011, the U.S. Court of Ap- based upon the state’s disapproval of his that Act 1 invites State agencies to “police” peals for the Fifth Circuit issued a deci- parents. couples seeking adoption or foster case to sion en banc which reversed and remanded Judge Jay C. Zainey of the U.S. District determine whether they are sexually active. a district court decision that had granted Court for the Eastern District of Louisiana In essence, like the sodomy statute, Act 1 summary judgment in favor of a gay male granted the plaintiff ’s motion for summary would penalize certain couples for not be- couple who sought to amend their adopted judgment on their Full Faith and Credit LESBIAN/GAY LAW NOTES May 2011 79

Claim, and declined to reach the Equal Pro- In Thompson, a father sued his ex-wife the typical method of enforcing an out- tection Clause arguments, 591 F.Supp.2d in federal court, seeking a declaration as to of-state judgment is to bring suit in a state 857 (E.D.La. Dec 22, 2008). The Registrar which of two conflicting state child custody court. However, this shouldn’t mean that then appealed the decision. In a panel de- determinations was valid, pursuant to the full faith and credit obligations don’t ap- cision written by Judge Jacques L. Wiener, Federal Parental Kidnapping Prevention ply to other state actors equally. The dissent the Fifth Circuit affirmed the lower court Act (28 USC § 1738A), which extends notes that this reasoning calls into ques- decision, 597 F.3d 697 (5th Cir. Feb 18, the full faith and credit obligation to child tion the constitutionality of state statutory 2010). custody orders. The Supreme Court held schemes that authorize non-judicial hear- However, upon rehearing en banc, the that the PKPA did not create an implied ing officers to register out-of-state- judg lower court decision was reversed and the cause of action in federal court, reasoning ments (i.e. LA. Const. Art. V, Sec. 28 [“[i] case remanded for entry of judgment of that “[i]nstructing the federal courts to play n each parish a clerk of the district court dismissal. A majority of the en banc court Solomon where two state courts have issued … shall be ex officio notary public and par- held that 42 USC § 1983 does not provide conflicting custody orders would entangle ish recorder of conveyances, mortgages, and the lower federal courts with jurisdiction to them in traditional state law questions that other acts...”). afford a remedy for persons aggrieved by an they have little expertise to resolve. This is Also, as the dissent points out, the ma- alleged violation of Full Faith and Credit by a cost that Congress made clear it did not jority never specifically addresses the rules state actors and that this case should have want the PKPA to carry (footnotes omit- of statutory construction as applied to the been brought in state court. Essentially, the ted).” exact language employed in the Full Faith court split as follows: Eleven judges signed Relying on Thompson, the Adar major- and Credit Clause. “Full Faith and Credit on to the jurisdictional holding in the ity concludes that § 1983, which gives the shall be given in each State to the public majority decision, written by Chief Judge lower federal courts jurisdiction of actions Acts, Records, and judicial Proceedings of Edith H. Jones. Nine judges went further, by private citizens for a remedy against every other State.” Significantly, the con- finding in the alternative that the Regis- state actors in federal court for the viola- stitutional language itself imposes an obli- trar’s refusal to issue the birth certificate tion of federal constitutional and statutory gation on “each State,” not narrowly on “the did not violate the Full Faith and Credit rights, does not apply to violations of the courts of each State.” Moreover, the major- Clause, and went even further to reject Full Faith and Credit Clause. The dissent, ity’s holding implicitly impinges upon state the Equal Protection claim asserted by the however, pokes holes in this argument by sovereignty, to the extent that the Full Faith plaintiffs, which had not been addressed distinguishing Thompson. First, Thompson and Credit Clause as read by the Adar court by the District Court. The two judges that was a suit between private parties. Second, dictates that states use only their courts to parted company with the majority declined as opposed to the PKPA, § 1983 explic- carry out their full faith and credit obliga- to consider the equal protection argument. itly provides for the remedy that Adar and tions. Finally, five judges dissented entirely, in a Smith seek, to wit, redress for the Regis- The majority didn’t just stop at the ques- decision written by Judge Wiener. They trar’s violation of their federal constitution- tion of whether § 1983 provides a mecha- concluded that: (a) 42 USC § 1983 is an al right to have Louisiana give Full Faith nism for violations of the Full Faith and appropriate vehicle to bring a claim against and Credit to the New York court’s adop- Credit Clause. They went on to conclude, in a state official sounding in a violation of tion order. the alternative, that the plaintiffs’ claim fails the Full Faith and Credit Clause; and (b) The dissent highlights the jurisprudence because correcting the birth certificate is an the Registrar’s refusal to issue the corrected behind § 1983 claims. “The Supreme Court “enforcement mechanism” as opposed to a birth certificate was improper. The dissent has repeatedly pronounced that § 1983 is “recognition” of the New York adoption de- also noted that majority’s resolution of the a remedial statute which is intended ‘to be cree, and asserts that this is important be- plaintiff ’s equal protection claim was- im broadly construed against all forms of of- cause the Supreme Court has held that the proper and was otherwise legally unsound. ficial violation of federally protected rights.’ Full Faith and Credit Clause only requires The majority ultimately held that a state ” The dissent, relying on Dennis v. Higgins, that states recognize final judgments but is required to give Full Faith and Credit to 498 US 439 (1991), concludes that suits that enforcement measures do not travel a sister state’s judgments via its own state for violations of the Full Faith and Credit with the sister state judgment. The dis- courts. The only redress that a private citi- Clause by state officials can be brought via sent carefully explains that here, however, zen has for a refusal by a state official to § 1983. In Dennis, the Supreme Court con- Louisiana’s refusal to apply its enforcement afford Full Faith and Credit to a judgment cluded that the dormant commerce clause measures under its birth certificate law to from another state is to go through the creates a federal right which may be en- this New York adoption decree means that state’s courts, and if those courts ultimately forced in federal court via § 1983. Louisiana has effectively refused to recog- deny the validity of a sister state judgment, The majority also reasons that since state nize the force of a disfavored judgment. the plaintiff may thereafter appeal to the courts are typically the violators of the Full This, as the Supreme Court explained in US Supreme Court. The lynchpin of the Faith and Credit Clause, this fact further Baker v. United States, 522 US 23 (1997), majority’s opinion is their twisted inter- supports the conclusion that the Clause Louisiana cannot do. (After this lawsuit pretation of Supreme Court jurisprudence, only applies to state courts. The dissent was filed, the Registrar offered to issue a particularly dicta contained in the U.S. criticizes this argument is unsound. State new birth certificate listing only one of the Supreme Court’s decision in Thompson v. courts have traditionally been violators of fathers. The plaintiffs declined this offer. Thompson, 484 US 174 (1998). the Full Faith and Credit Clause because The majority would have found this suf- 80 May 2011 LESBIAN/GAY LAW NOTES ficient to meet any constitutional require- tiffs’ equal protection claim upon the clas- New Castle County Family Court that the ment; the dissent sarcastically described it sification of unmarried adoptive parents, plaintiff was a de facto parent of the child as “half faith and credit.”) and in doing so, compares them to married adopted by her former partner and thus Nor does the Registrar have discretion to adoptive parents, finding it appropriate to entitled to an award of joint legal custody. apply the enforcement mechanisms con- draw a distinction, where the birth certifi- The court assigned the parties pseudonyms tained in the applicable birth certificate cate statute does not draw such a distinc- of Lynn M. Smith (adoptive parent) and law, entitled Record of Foreign Adoptions, tion. Carol M. Guest (de facto parent). Guest’s LA. Rev. Stat. Ann. Sec. 40:76, insisted the Applying rational basis review, the ma- triumph depended on a statute passed by dissent. This statute provides: “When a jority concludes that Louisiana has a le- the Delaware legislature in 2009 in re- person [1] born in Louisiana [2] is adopted gitimate interest in treating married and sponse to her prior defeat in the Delaware in a court of proper jurisdiction [3] in any unmarried adoptive parents differently, in Supreme Court, which had ruled that the other state or territory of the United States, light of its “preference for stable adoptive state’s custody laws did not recognize the the [Louisiana] state registrar may create a families” and “the state’s decision to have its status of de facto parent. The 2009 statute new record of birth in the archives [4] upon birth certificate requirements flow from its adds “de facto” parents to the relevant pro- presentation of a properly certified copy of domestic adoption law.” The majority cites vision defining parent-child relationships. the final decree of adoption... Upon receipt Lofton v. Sec’y of Dep’t of Children & Fam- Smith and Guest met in 1994 and began of the certified copy of the decree, the state ily Servs., the infamous case in which the living together in 1995. After living togeth- registrar shall make a new record in its ar- Eleventh Circuit held that Florida had a er for five years, they decided their relation- chives, showing... The names of the adoptive rational basis for prohibiting gays and les- ship was strong enough and they wanted parents and any other data about them that is bians from adopting (358 F3d 804 [2004]). to have a child. After several attempts by available and adds to the completeness of the The majority inexplicably notes that “[t]o Smith to become pregnant through donor certificate of the adopted child.” invalidate the latter would cast grave doubt insemination had failed, they decided to The state makes public policy arguments on the former.” Perhaps this point serves to adopt. In 2003, Smith adopted a child in based upon Louisiana’s adoption law, highlight the goal-oriented nature of the Kazakhstan. Guest participated in the pro- which does not permit unmarried couples majority’s treatment of Adar and Smith’s cess and traveled with Smith to Kazakh- to adopt, to the extent that public policy equal protection claim. stan, but that country does not allow joint should limit the recognition afforded the The dissent argues that the Registrar’s adoptions by same-sex partners, so Smith NY adoption decree. However, as the dis- refusal to issue a corrected birth certificate was the sole adoptive parent. sent notes, there is no roving public policy in the case of an out-of-state adoption will After they returned to Delaware, they exception to the full faith and credit due have no way of improving the stability of sought legal advice about having Guest foreign-state court judgments. that family. Indeed, it potentially under- adopted as a co-parent. They claim they That leaves the Equal Protection claim, mines their stability. The dissent also calls were told that Guest would have to care about which the majority’s treatment is into question any parallels drawn between for the child for at least a year before the confusing, to say the least. First, the district Louisiana’s birth certificate and adoption Family Court would approve an adoption, court never addressed the equal protection laws, finding the latter irrelevant to the in- and they ended up dropping the matter. claim, having resolved the matter solely stant inquiry. The dissent also highlights Guest played a parental role towards the by reference to the Full Faith and Credit the fact that with respect to the suspect child over the ensuing year until the parents Clause. Procedurally, while the plaintiffs class defined as unmarried non-biological ended their relationship, and Guest moved moved for summary judgment in their fa- parents, the Registrar has failed to come out at Smith’s request in May 2004. A few vor, the Registrar never cross-moved for forward with a rational basis for drawing weeks later, Smith cut off Guest’s contact summary judgment, so the District Court this distinction. with the child and Guest filed suit for joint only ruled to the extent necessary to grant In all, this surprising reversal by the custody. The Family Court granted her that motion. Yet despite these two facts, the Fifth Circuit seems legally unsound, and petition, based on a de facto parent theory, majority steamrolls ahead and in just three downright dangerous for individual rights but the Delaware Supreme Court reversed paragraphs, dismisses the Equal Protec- and Section 1983 claims in general. Eric J. that ruling in a decision issued in Febru- tion claim entirely, applying rational basis Wursthorn. ary 2009, then titled Smith v. Gordon, 968 review and referring to the state’s ban on A.2d 1. adoptions by unmarried couples. Delaware Lesbian Co-Parent The Supreme Court pointed out that The dissent notes that in analyzing this Benefits from Statute Inspired by this issue was controlled by statute, and the claim, the class which the plaintiffs fall un- Her Own Case Delaware Uniform Parentage Act identi- der is unmarried non-biological adoptive fied only two kinds of parents who could parents. In Louisiana, an unmarried couple The Delaware Supreme Court may have seek custody: birth parents or adoptive par- is statutorily entitled to a birth certificate put an end to a contentious, long-running ents. The court reviewed at length the his- for their biological child naming both bio- dispute between former lesbian partners tory of Delaware’s legislation on this issue, logical parents (L.A. Rev. Stat. Ann. Sec. by denying reconsideration to its unani- concluding that the omission of de facto 40:34 [B] [1] [h] [ii]), while the same is not mous decision issued last month in the case parents was not inadvertant, while noting true for unmarried non-biological parents. of Smith v. Guest, 2011 Westlaw 899550 that several other states had adopted this However, the majority couches the plain- (March 14, 2011), affirming a ruling by the concept in light of social changes in family LESBIAN/GAY LAW NOTES May 2011 81 life. The court concluded that whether to parent and, consistent with the best inter- that interest through a legally-recognized allow de facto parents to seek custody was ests of the child, awarded her joint custody. channel cannot unconstitutionally in- a legislative policy decision for the General Smith appealed. fringe Smith’s due process rights. In short, Assembly to make. In its unanimous ruling, the Supreme Smith’s due process claim fails for lack of a Media coverage of the decision caught Court decisively rejected both state and valid premise.” the legislature’s attention, and it moved federal constitutional challenges to the Smith also argued that S.B. 84 violated promptly to amend the statute, passing statute. her equal protection rights, contending that S.B. 84, amending the Delaware Uniform Smith based her state constitutional the legislature had inappropriately acted Parentage Act to add “de facto parent” to argument in part on the doctrine of sepa- specifically to overturn her victory in the the section titled “Establishment of par- ration of powers, arguing that it was in- prior lawsuit. But the court was uncon- ent-child relationship” (Del. Code Title appropriate for the legislature to reverse a vinced, since the legislature had rethought XIII, Section 8-201), and setting out a decision of the Supreme Court because it a basic policy issue and amended the stat- fact-specific test for determining whether disagreed with the court’s interpretation ute to apply to all people who might claim a person was a de facto parent, focusing on of a statute. The court responded that the de facto parent status, not just Guest. The how their relationship with the child was legislature’s action was not a reversal of the new law was made retroactive for all cases, established and the nature of such relation- court, but rather a decision to consider the not just her case. Although, in fairness, the ship. The provisions are consistent with the policy issues raised by the court. The legis- court strains a bit when it comes to the last tests established in other jurisdictions that lature’s action did not say that the court had provision of the statute, which provided recognize de facto parent status. The statute misconstrued the statute. Rather, it said that no court decision premised on Dela- also provided that its provisions “shall have that the legislature had decided to redefine ware’s failure to recognize de facto parents retroactive effect” and that “No Court de- the concept of parental status, having re- should have collateral estoppel or res ju- cision based upon a finding that Delaware considered the policy concerns that led to dicata effect, since that provision looks an does not recognize de facto parent status the prior statute. The court also rejected an awful lot like a legislative attempt to give shall have collateral estoppel or res judicata argument by Smith that the statute violat- Guest a second shot at gaining a custody effect.” ed a state constitutional ban on multi-issue order. On the other hand, any other po- Collateral estoppel and res judicata are legislation. tential de facto parent who had lost their legal concepts intended to produce final- More significantly, the court rejected claim before the Family Court on this basis ity in litigation. Under collateral estoppel, Smith’s federal constitutional argument would also be benefited by that provision. parties may not re-litigate in one forum an premised on the U.S. Supreme Court’s de- As the court points out, the statute does issue that they have already litigated to a cision in Troxel v. Granville, 530 U.S. 57 not specifically name or specifically confer conclusion in another forum. Under res (2000), a decision that had struck down a cause of action on Guest. judicata, once a court finally decides a legal a state law under which a court awarded The court also decisively rejected Smith’s dispute between the parties, the matter is visitation rights to a child’s paternal grand- argument that the provisions on retroactiv- closed and may not be reopened through a parents over the objection of the child’s ity, collateral estoppel and res judicata were new lawsuit. mother, the widow of their son. The Su- not part of the statute due to their omission The day S.B. 84 went into effect, July preme Court had ruled in that case that the from the codified version. As long as a bill 6, 2009, Guest filed a new lawsuit seeking constitutional due process rights of a parent is passed and signed into law, the entire bill joint custody of the child. Smith argued would be violated by ordering them to al- becomes part of the law of Delaware, said that the statute was an unconstitutional low access to their child to a “third party” the court. Furthermore, because Guest’s violation of her rights as a legal parent, non-parent. custody claim was previously rejected on and also sought to raise collateral estop- The Delaware Supreme Court rejected standing grounds, her status as a de facto pel and res judicata arguments. She seized the argument that Troxel made S.B. 84 un- parent was never litigated on the merits, so upon a technicality: Under Delaware law, constitutional. Writing for the court, Jus- the use of collateral estoppel or res judicata after a statute is passed the “reviser” of the tice Jack B. Jacobs pointed out that Guest to preclude her new lawsuit would be inap- Delaware Code extracts relevant provi- was not suing as a “third party” but rather as propriate in any event. sions to be codified. The provisions to be a “de facto parent,” a status that the grand- Justice Jacobs ended the court’s decision codified - formally published in the state’s parents in Troxel could not satisfy. “This is with an expression of empathy for the par- statutory code - are the substantive provi- not a case, like Troxel, where a third party ties who have been litigating over this for sions. Provisions dealing only with issues having no claim to a parent-child relation- so long. “We also are sensitive to the emo- of interpretation are not codified. Thus, the ship (e.g., the child’s grandparents) seeks tional considerations and frustrations that amended version of Section 8-201 that ap- visitation rights,” he wrote. “Guest is not both parties have experienced throughout pears in Title XIII of the Delaware Code ‘any third party.’ Rather, she is a (claimed) this process,” he wrote. “The General As- does not include the provisions of S.B. 84 de facto parent who (if her claim is estab- sembly, however, has made a public pol- dealing with retroactivity, collateral estop- lished, as the Family Court found it was) icy decision to recognize persons, such as pel and res judicata. would also be a legal ‘parent’ of ANS. Be- Guest, as legal ‘parents’ who are entitled to The Family Court rejected Smith’s argu- cause Guest, as a legal parent, would have seek custody of their minor children. Our ments, found that the statute was constitu- a co-equal ‘fundamental parental interest’ judicial role requires us to give full mean- tional and that Guest qualified as a de facto in raising ANS, allowing Guest to pursue ing and effect to those legislative changes.” 82 May 2011 LESBIAN/GAY LAW NOTES

Perhaps it is not entirely coincidental that discrimination policy by making anti-gay California Appellate Court the General Assembly legislated in favor comments to a gay employee. Matthews v. Sustains Discharge of Tenured of establishing civil unions for same-sex Wal-Mart Stores, 2011 WL 1192945 (9th Gay Teacher Who Placed couples just after the court issued its new Cir., March 31, 2011) (unpublished). Sexually-Explicit Personal Ad on ruling in this case, reflecting the changed Matthews, an Apostolic Christian, had Craigslist legal environment for LGBT people in taken part in a conversation with cowork- Delaware. ers during which she “screamed” that a gay A San Diego middle school teacher, Frank Because the court rejected Smith’s fed- employee was “going to hell” and “not right Lampedusa, placed an extremely explicit eral constitutional argument, it remains in the head.” After complaints were lodged advertisement on Craigslist, seeking sex open to Smith to seek review in the United about the incident, Wal-Mart conducted a with other men. The advertisement includ- States Supreme Court of the federal con- 3-month investigation pursuant to its Dis- ed photographs of Lampedusa’s face, body, stitutional question. Given the long odds crimination and Harassment Prevent Poli- genitals, and anus. His superintendent and against that court granting review, however, cy and subsequently terminated Matthews, principal were informed of the ad and ter- it is possible that this case is near its end. concluding that she had engaged in seri- minated him. However, the state’s Com- Guest is represented by the ACLU of ous harassment in violation of the Policy. mission on Professional Competence over- Delaware. Richard Morse and Michael Matthews brought suit in federal District ruled the local school officials, and allowed Arrington of Parkowski, Guerke & Swayze Court, asserting race and religious-based Lampedusa to continue teaching. The su- argued the case on behalf of the ACLU. claims under Title VII. perior court upheld the commission’s deci- Morse praised the decision to a reporter The U.S. District Court for the North- sion, but a unanimous 3-judge panel of the from the News Journal, in an article pub- ern District of Illinois granted summary 4th District Court of Appeal overturned lished on April 19, saying that it was im- judgment for Wal-Mart, and Matthews ap- that decision and ordered that Lampedusa portant to “preserving the rights of children pealed only the religious discrimination is- be dismissed. San Diego Unified School Dis- in non-traditional families and ensuring sue to the Court of Appeals. A panel of the trict v. Commission on Professional Compe- them stable, long-term relationships with court, including Chief Judge Posner, first tence (Lampedusa), 2011 WL 1234686 (Cal. the people who raised them.” rejected Matthews’ claim that Wal-Mart App., 4th Dist., Div. 1, April 4, 2011). Smith was represented by Michael P. must “permit her to admonish gays at work The advertisement was quite typical of Kelly of McCarter & English. She re- to accommodate her religious belief,” as she those found in the “Men Seeking Men” sec- acted bitterly to the court’s decision, tell- had not advanced the argument before the tion of Craigslist. Its title was “Horned up ing the News Journal that it was part of a District Court, and because forcing this ac- all weekend and need release,” and it read: larger gay rights social agenda. “Parental commodation on Wal-Mart would cause “In shape guy, masc, attractive, 32 waist, rights have been dismantled,” she said. “It undue hardship and “place Wal-Mart on swimmer’s build, horny as fuck. Looking to will take a few years for people to realize the ‘razor’s edge’ of liability by exposing it suck and swallow masc guys, also looking to what it means, but parents don’t have the to claims of permitting workplace harass- get fucked. Uncut and huge shooters jump right to care and custody of their children ment.” to head of line. Give my [sic] your loads so any more. Another individual now has the The panel next rejected Matthews’ indi- I can shoot mine. White, black, Hispanic, right to sue you for rights to your children. rect argument, stating that she had to prove European, all good. No fats, fems, queens, It’s downright scary.” Her attorney, Kelly, that similarly situated employees outside asians. NO BELLIES. Have pics when you said he was “troubled” by the ruling, but of her protected group were treated more email.” Lampedusa’s ad included four pho- said he had great respect for the Delaware fairly. The panel held that since no other tos, two of which showed his face, which Supreme Court. “I am just a dumb Irish- employees in the conversation had “com- enabled Lampedusa to be recognized by a man,” he said. “What do I know?” The mented on ‘someone’s individual status, parent of a student at Lampedusa’s school, News Journal reported that attempts to homosexuality or race,’ and there [was] no who anonymously reported the ad to the contact Guest for comment had been un- evidence in the record that other Wal-Mart police. The police reported the ad to the successful. A.S.L. employees had violated the harassment superintendentof schools, who informed policy and not been fired,” that Matthews the principal of Lampedusa’s school, Susan Seventh Circuit Rejects Religious had failed to make a prima facie claim of Levy. Principal Levy viewed the ad, and Discrimination Claim by Title VII discrimination. The panel fur- eventually dismissed Lampedusa, alleging Terminated Anti-Gay Apostolic ther held that Matthews claims that Wal- unfitness for service and immoral conduct Christian Wal-Mart Employee Mart’s reasons for her termination were under the California Education Code. pretext could not be reached because of her Lampedusa appealed his dismissal to the The U.S. Court of Appeals for the Seventh failure to make a prima facie claim. Commission on Professional Competence. Circuit has affirmed a District Court’s rul- Finally, the panel rejected Matthews’ The Commission found that Lampedusa’s ing that Wal-Mart Stores was entitled to claims of ineffective assistance of counsel “conduct in placing this sexually explicit ad summary judgment against an Apostolic and that her trial counsel “sabotaged” her was vulgar and inappropriate and demon- Christian employee who had claimed reli- case, stating that “counsel’s allegedly neg- strated a serious lapse in good judgment,” gious-based discrimination in violation of ligent behavior is a malpractice action, not and it “strongly condemned” his behavior. Title VII of the Civil Rights Act of 1964 another shot at a trial against Wal-Mart.” Nevertheless, the evidence didn’t establish when she was fired for violating Wal-Mart’s Bryan C. Johnson that Lampedusa was unfit to teach, in the LESBIAN/GAY LAW NOTES May 2011 83 opinion of the Commission. It found that the one in question, and had stated that he and bars, and sent the case back to Justice there was “little likelihood that [Lampedu- did not believe he had acted immorally. He York for reconsideration. sa’s] conduct adversely affected students or shifted responsibility to parents to prevent Thus begins a new chapter in a long- fellow teachers since none of them learned students from seeing the ads. Thus, in the running saga that began during the Ru- of the incident and, therefore, there was no view of the court, the situation was aggra- dolph Giuliani Administration almost notoriety associated with the incident.” The vated. twenty years ago. Giuliani strongly advo- Commission found that Lampedusa had (5) Praiseworthiness or blameworthiness of cated “cleaning up the city” by closing as tried to mitigate any damage by removing motives resulting in the conduct: The court many adult businesses as possible. Under the ad, and he now “understands he made a found Lampedusa’s conduct blameworthy. the 1st Amendment of the U.S. Constitu- mistake and has learned from it.” (6) Likelihood of recurrence of questioned tion, however, there are limits to what the The school district appealed the- Com conduct: Lampedusa had stated that he government can do in its regulation of mission’s decision to Superior Court, which would continue in the future to post ads so- sexually-oriented businesses, so long as the found that the weight of the evidence sup- liciting sex, and did not believe he had done business’s goods and services don’t cross the ported the Commission’s decision. The dis- anything immoral. Thus, the court found line into constitutionally-unprotected ob- trict then appealed to the Court of Appeal, that such an incident is likely to recur. scenity. The city can impose restrictions on which had quite a different view. Appellate (7) Chilling effect on constitutional rights the location of adult businesses so long as it review was based on an abuse-of-discretion of teachers: The court found that Lampedu- can show that their presence has undesir- standard, and the issue, as stated by the sa’s termination would not have a chilling able “secondary effects,” and the U.S. Su- Court of Appeal, was whether the Com- effect, citing the U.S. Supreme Court’s de- preme Court has accepting the contention mission’s finding was supported by - sub cision in City of San Diego v. Roe, 543 U.S. that a zoning plan backed up by studies stantial evidence. 77 (2004), in which termination of a police showing such secondary effects - crime, in- The court stated that not only was officer for his off-duty sales of sexually ex- cluding drug dealing and prostitution, and there no substantial evidence to support plicit videos was upheld, as his actions were negative effects on property values - can be the Commission’s decision, but there was, “detrimental to the mission and functions” constitutional, so long as it leaves enough rather, substantial evidence that Lampe- of a city police officer. locations so that those who want to pur- dusa was unfit to serve as a teacher, which The California Education Code also chase such goods and services can do so. constituted adequate grounds to fire him. permits dismissal of a teacher for “immoral In 1993, the City Planning Department The court recited a list of seven factors or unprofessional conduct” (Cal. Educ. carried out a study of secondary effects of relevant to a teacher’s unfitness for ser- Code 44932(a)(1)), amply exemplified, said adult establishments in the City, gener- vice (Cal. Educ. Code 44932(a)(5)), as set the court, by Lampedusa’s postings. ating a report that provided the basis for down by the California Supreme Court in Thus, the Court of Appeal ordered the the 1995 Amendment to the city’s Zoning Morrison v. State Board of Educ., 1 Cal. 3d Superior Court to render a decision consis- Resolution. The 1995 Amended Zoning 214 (1969), and gave Lampedusa a failing tent with its decision: Lampedusa must be Resolution barred adult businesses from grade on each of them. The factors, and the terminated. Alan J. Jacobs all residential zones and most commercial Court’s pronouncement on each, are: and manufacturing districts, defining an (1) Likelihood that the conduct adversely af- New York Appellate Division “adult business” as a commercial establish- fected students or fellow teachers, and degree of Revives Challenge to Adult Zoning ment in which a “substantial portion” of the adversity: The Commission found that, had Ordinance establishment includes “an adult bookstore, a parent or fellow educator viewed the ad, adult eating or drinking establishment, it would have “washed over” into Lampe- A unanimous panel of the New York Ap- adult theater, or other adult commercial dusa’s professional life and interfered with pellate Division, First Department, ruled in establishment, or any combination thereof.” his ability to serve as a role model. The For the People Theatres of NY v. City of New This was not a definition that could be Court of Appeal noted that both a parent York, 2011 N.Y. Slip Op. 02816, 2011 WL readily applied without more specific guid- and a fellow educator had seen the ad, thus 1325604 (April 8), that opinions rendered ance, and the City Planning Commission the effects had “washed over.” In particular, last year by New York Supreme Court Jus- came up with a rule of thumb that defined the relationship with the principal, a fellow tice Louis B. York, rejecting constitutional “substantial portion” as 40 percent, speci- educator, had been irreparably impaired. challenges to the NYC Zoning Resolution fying that any commercial establishment (2) Proximity or remoteness in time of the concerning location of adult businesses, with “at least 40 percent of its accessible conduct: At the time of the hearing, the were so terse that they lacked the neces- floor area used for adult purposes qualifies conduct was not remote at all; it had oc- sary findings of fact that would enable the as an adult establishment or adult book- curred only one year before. appeals court to determine whether Justice store.” Operators of such businesses that (3) Type of teaching certificate held by the York’s conclusions were supported by the wanted to remain open in their existing party involved: The posting of the “porno- factual record in the case. Consequently, locations and not be exiled to remote loca- graphic ad” is inconsistent with teaching in the court reversed the decisions, vacated tions altered their premises and their stock middle school. Justice York’s finding that the Zoning to try to comply with what became known (4) Extenuating or aggravating circum- Resolution is constitutional with regard to as the 60/40 rule. stances surrounding conduct: The court noted bookstores, video stores, topless night clubs City inspectors brought actions against that Lampedusa had posted ads prior to such businesses despite their techni- 84 May 2011 LESBIAN/GAY LAW NOTES cal compliance, contending that it was a these businesses display a predominant, how his conclusions are based on particular “sham” and they were still “adult businesses” ongoing focus on sexually explicit materials facts in the record, the Appellate Division that could not operate where they were lo- or activities, and thus their essential nature is unable to perform this task. cated. This didn’t play well in the courts, has not changed.” If the nature of the busi- Justice Acosta devoted the balance of since these businesses were technically in nesses hasn’t really changed, goes the logic his opinion to describing the evidence that compliance with the 60/40 rule, leading of the decision, then the original study on would be necessary to support the consti- the City Council to adopt further amend- secondary effects is sufficient to uphold the tutionality of the Resolution, either on its ments to the Zoning Resolution in 2001. constitutionality of the Resolution. face or as applied to particular establish- The 2001 Amendments spelled out that After the case went back to Justice York ments. Part of the problem with the trial compliance with the 60/40 rule was not from the Court of Appeals, he granted court’s decision was that it seemed based sufficient to avoid the label of “adult busi- a further preliminary injunction against on broad generalizations about the 60/40 ness” if (1) customers had to pass through enforcement of the Resolution pending businesses rather than detailed factual find- adult material to reach the non-adult sec- the outcome. After considering further ings about the actual businesses that are tion, (2) any material exposed one to adult evidence, Justice York ruled early in 2010 contesting the City’s application to them material, (3) non-adult material was only that the amended definition of “adult - es of the label “adult business.” “Supreme for sale, while adult materials was for sale tablishment” was constitutional as applied Court’s decision states very few, if any, facts or rent, (4) more adult printed materials to adult bookstores and live entertainment that can be used by this Court to resolve were available than non-adult ones, (5) mi- establishments, but not as applied to “adult plaintiff ’s as-applied challenge,” comment- nors were restricted from the entire store or theaters.” His brief decisions emphasized ed Justice Acosta, noting that Justice York from any section offering non-adult mate- the Court of Appeals’ comment that the had been dismissive of evidence offered by rial, (6) signs or window displays of adult burden on the City was relatively light, the plaintiffs to show that their businesses matter were disproportionate to signs and and that no new study of secondary effects differed in relevant ways from others whose window displays featuring non-adult mat- was necessary if the City showed that the characteristics were entered into evidence. ter, (7) one or more individual enclosures essential nature of the businesses had not Justice Acosta pointed out that “neither were available for viewing adult movies or changed as a result of their 60/40 configu- the decision nor the judgment makes any live performances, and (8) purchasing non- ration. factual findings to help resolve the question adult material exposed the buyer to adult Writing for the Appellate Division pan- of whether only some of the clubs were material. el, Justice Rolando T. Acosta pointed out found to have a predominantly sexual focus In October 2002, new lawsuits were the shortcomings of Justice York’s opin- or whether all of them were.... The result filed challenging the constitutionality of ion. “In its extremely terse decision,” he of Supreme Court’s decision is that some the 2001 Amendment. Trial judges is- wrote, “Supreme Court did not elaborate of the non-sham clubs could be put out of sued temporary injunctions against the on the criteria by which it determined that business by a law that, in fairness, many not new Amendment being enforced while the the plaintiff ’s essential nature was similar apply to them.” cases were under litigation, so the 60/40 or dissimilar to the sexually explicit adult The Appellate Division’s opinion does establishments continue to operate. Mean- uses that were analyzed in the DCP Study not specify a deadline for Justice York to while, the cases wound their way through or other studies and case law from across render a new decision, but the clear im- the courts, eventually hitting the Court of the country. Moreover, it failed to state the plication of the ruling is that further evi- Appeals (the state’s highest court) in 2005. particular facts on which it based its judg- dentiary submissions will be required to That court found that the plaintiffs were ment. Supreme Court simply detailed the provide a factual basis for rendering a deci- entitled to a hearing of their constitutional City’s evidence and arrived at legal con- sion that complies with the court’s require- claim, which boiled down to the contention clusions. This was insufficient to answer ments, and that Justice York would need to that the original study of adult businesses the question posed... from the Court of produce a detailed set of factual findings carried out by the City Planning Commis- Appeals -- namely, whether the 60/40 es- to bolster his conclusions, so this may take sion in 1993 could no longer support the tablishments are similar in nature to adult some time. Meanwhile, the preliminary in- current version of the Zoning Resolution as establishments that have been shown by junctions remain in effect. it applied to the reconfigured 60/40 busi- means of empirical data to cause negative Attorneys for the plaintiffs challeng- nesses, because these reconfigured busi- ‘secondary effects.’ As Supreme Court did ing the Zoning Resolution include Herald nesses as substantially different from the not provide any direction for the parties or Price Fahringer, Erica L. Dubno and Ni- adult businesses that operated in the City this Court to adequately review, analyze, or cole Neckles of Fahringer & Dubno, and back then. understand the ruling, its decision is ‘mani- Edward S. Rudofsky of Zane & Rudofsky. The Court of Appeals said that the City festly inadequate’ and violates the dictates” The City Law Department is defending the did not have to carry out an entirely new of the statute governing the content of trial Zoning Resolution. A.S.L. study, although certainly it could do so. Its court decisions. burden, however, was to create an evidentia- The problem for the Appellate Division Oregon Court Finds Same-Sex ry record so that the trial court could deter- is that its job is to determine whether Jus- Lesbian Partner to be a Parent mine “that the City has fairly supported its tice York’s legal conclusions are supported position on sham compliance -- i.e., despite by the factual record. Without a more de- In a letter ruling issued to the parties in formal compliance with the 60/40 formula, tailed explanation from Justice York about Shineovich v. Kemp, Multnomah County, LESBIAN/GAY LAW NOTES May 2011 85

Case Number 0703-63564, on March 31, the insemination with the idea of being a tana, Cause No. BDV-2010-702 (April 19, 2011, Oregon Circuit Judge Katherine parent of the resulting children. 2011), a suit filed by the American Civil Tennyson ruled that Sondra Shineovich In her March 31 letter ruling, Judge Liberties Union of Montana on behalf of and Sarah Kemp were a “same-sex couple” Tennyson found in favor of Shineovich on several same-sex couples seeking equal ac- as that term was used by the Oregon Court both points, reciting a long list of factual cess to the various rights provided under of Appeals in its precedent-setting decision findings bolstering the conclusion that this state law to married different-sex couples in Shineovich v. Kemp, 214 P.3d 29 (Or. case met the test set out by the Court of through some formal legal status. Judge App., 2009), and thus as Shineovich had Appeals. She wrote that “the focus of the Sherlock found that it would be an “inap- consented to donor insemination of Kemp inquiry here is whether or not these two had propriate exercise” of the court’s power to while they were a couple, she has the status a committed partnership which intended, order the legislature to enact a law provid- of a parent of the resulting children, and in additional to financial interdependence, ing domestic partnerships or civil unions can seek custody and/or visitation on the to produce and raise children together. The for same-sex couples. basis of legal parental status. weight of the evidence answers that ques- The Montana courts have had a rather Sarah Kemp had argued that the idea of tion as an overwhelming ‘yes.’ Further, it is progressive record on LGBT rights over having children was hers alone and that she also overwhelming [sic] apparent from all the recent past. In 1997, the Montana had never intended sharing parenting of credible evidence on this record, that the Supreme Court invalidated the state’s ban the children with Shineovich. She had also parties worked together to achieve the goal on consensual gay sex in Gryczan v. State, contested the nature of their relationship, of conceiving and raising children. There is 942 P.2d 112. More recently, that court arguing that it did not qualify for the “equal no question that Shineovich consented to ruled in Snetsinger v. Montana University treatment” decreed by the Court of Appeals this process. She contributed with her ac- System, 104 P.3d 445 (2004), that the state in this case. tions, money and emotions. This goal was a university’s policy of denying insurance Shineovich and Kemp had lived togeth- topic of discussion between Shineovich and coverage to same-sex domestic partners of er for ten years, during which time Kemp Kemp and was a joint effort between them. gay employees violated the equal protec- became pregnent through donor insemina- These children were an integral part of their tion requirements of the state constitution. tion twice. When the relationship ended, partnership.” On the other hand, Montana voters have Kemp was pregnant with their second child. The judge found that Kemp’s version of not been as progressive, voting in 2004 to Shineovich went to court to establish her events was “simply not believable” in light enact Article XIII, Section 7, of the Mon- parental rights after they split up, but Judge of the documentary evidence about the re- tana Constitution, which provides: “Only a Tennyson had dismissed the case, finding lationship and the testimony of other wit- marriage between one man and one woman that Shineovich had no valid legal theory nesses, including Kemp’s aunt, who had shall be valid or recognized in this State.” to assert parental status. The couple had broken with Kemp over how she had acted The plaintiffs, pursuing a strategy that not entered into any kind of formal writ- regarding the parentage of the children. LGBT rights groups have devised for state ten agreement during their years together Having concluded that the test set forth constitutional litigation in jurisdictions governing the relevant issues, and Oregon by the court of appeals was met, Tennyson that constitutionally ban same-sex mar- at the time of their break-up had no perti- directed Shineovich’s attorney to prepare a riage, argued that the marriage amendment nent express statutory law. (There is now a judgment reflecting the ruling and further was irrelevant to their claim, as they are not domestic partnership law that could cover directed that the parties schedule a con- seeking a right to marry from the court. this situation for those who are registered ference with the court to set dates to re- Rather, noting the many ways in which partners.) solve the custody and visitation issues. As state law denies rights to same-sex couples The Court of Appeals responded to Shi- Shineovich and Kemp would have equal that are made available to different-sex neovich’s appeal of the dismissal of her case standing as legal parents of the children, the couples who can marry, they are seeking a by determining that a statute under which remaining issue in the case concerns what declaration that the state is obligated by its the husband of a woman who gives birth to custody and visitation arrangements would constitutional equality guarantee to pro- a child conceived through donor insemina- be in the best interests of the children. vide a way for same-sex couples to access tion is the legal parent of the child if he Shineovich has been represented at the the same rights. They also argued that fail- consented to the insemination for the pur- trial level by David W. Owens and Jodie ing to provide equal access to such rights pose of having a child would be improp- M. Sneller of Owens, Sneller, Pinzelik & through some sort of a legally-recognized erly discriminatory on the basis of sexual Wood, P.C., in Portland, and on appeal by status violated their rights to privacy, dig- orientation if the law was not construed Mark Johnson of Mark Johnson Roberts. nity, and to pursue life’s basic necessities, all to provide the same privilege to the same- A.S.L. rights mandated in the Montana Constitu- sex partner of a woman who gives birth tion (Article II, sections 3, 4 and 10). through donor insemination. The Court Montana Trial Court Dismisses The plaintiffs called the court’s attention of Appeals remanded the case to Judge Suit Seeking Equal Legal Rights to several important decisions from other Tennyson for a determination whether the for Same-Sex Couples state supreme courts. In Alaska, the Su- relationship of Shineovich and Kemp fell preme Court ruled in Alaska Civil Liberties within the parameters of the court’s ruling, Montana District Court Judge Jeffrey M. Union v. State, 122 P.3d 781 (2005), that and whether Shineovich had consented to Sherlock has granted the state’s motion despite the passage of a state constitutional to dismiss in Donaldson v. State of Mon- amendment banning same-sex marriage, 86 May 2011 LESBIAN/GAY LAW NOTES the state was violating its constitutional of powers between the branches of govern- Minnesota Appeals Court Upholds guarantee of equal protection by not ex- ment. Travel Expense Award for Third- tending employment benefits coverage to While Judge Sherlock indicated he Party Visitation same-sex partners of state employees. In would have no problem using the equal Vermont and New Jersey, the state supreme protection clause in a case presenting a The Court of Appeals of Minnesota ruled courts ruled that denying the rights and specific instance of statutory discrimina- on April 26, 2011, that a district judge had benefits of marriage to same-sex couples tion, such as the employee benefits policy appropriately ordered a lesbian mother who violated state constitutional equality guar- upon which the Montana Supreme Court had relocated with her child to Arizona to antees, which could be remedied by passage ruled in the Snetsinger case, it struck him pay half the costs of transporting the child of alternative structures such as civil unions as an entirely different matter for the court between Arizona and Minnesota to effec- or domestic partnerships. Baker v. State, to address the issue by ordering the legisla- tuate the third-party visitation rights of the 744 A.2d 864 (Vt. 1999); Lewis v. Harris, ture to create a particular statutory scheme mother’s former partner. The unanimous 908 A.2d 196 (N.J. 2006). such as a civil union law. “For this Court ruling in Hay v. King, 2011 WL 1546586 Acknowledging these rulings from other to direct the legislature to enact a law that (unpublished), found that the lack of spe- states, Judge Sherlock found them distin- would impact an unknown number of stat- cific statutory authorization for the award guishable in relevant ways. He pointed utes would launch this Court into a roiling of such expenses was no barrier to the dis- out that the Alaska Supreme Court was maelstrom of policy issues without a con- trict court’s exercise of equitable powers in not asked to order the state legislature to stitutional compass,” he declared. aid of the best interest of the child. adopt a formal legal structure for same-sex While conceding that the marriage The opinion for the court by Judge Ed- couples. In the Vermont and New Jersey amendment, standing alone, would not ward Toussaint, Jr., unfortunately does not cases, he noted, the people of those states preclude the relief plaintiffs were seeking, relate in detail the underlying facts of the had not amended their constitutions to in- Sherlock insisted that the existence of that case. Apparently, after the women’s rela- clude a specific ban on same-sex marriage. amendment “plays into the jurisprudential tionship ended the co-parent sued for joint Judge Sherlock observed that the plain- decision that Plaintiffs’ requested relief custody and visitation, eventually withdrew tiffs presented the court with a list of constitutes an impermissible sojourn into her demand for custody, and ultimately ob- Montana statutory provisions that provide the powers of the legislative branch. He tained a third-party visitation order from benefits or entitlements to married couples noted that during the referendum cam- the district court. After the visitation order that are not available to same-sex couples, paign that produced the amendment, both went into effect, the legal mother moved and had presented evidence of “real life proponents and opponents had referred to with the child to Arizona, and the peti- scenarios where these laws have affected more than just the label of marriage as be- tioner, Ms. Hay, applied to the court for them.” He commented, “In addition to ing at stake. “Indeed,” he wrote, “the pro- financial assistance for travel expenses nec- these statutory arrangements, there ap- ponents and opponents seem to both ac- essary to make it possible for visitation to pears little doubt that Plaintiffs have been knowledge that the marriage amendment continue. subject to private prejudice, discrimination, would have something to do with benefits The district judge then amended the and even violence in Montana.” He con- and obligations that relate to the status of visitation order, providing, in relevant part: ceded that the court should not consider being married.” “With respect to visits with [the child] in “personal, moral, or religious beliefs about Ultimately, Sherlock concluded, grant- Minnesota, it is equitable to order the par- whether persons should enter into intimate ing the relief requested by the plaintiffs ties to equally share [the child’s] airfare same-sex relationships or whether same- “would violate the constitutional separation costs to and from Minnesota for court-or- sex individuals [sic] should be allowed to of powers existing in the state of Montana,” dered visits with [respondent]. It is in [the marry” in making his decision, and that it so he granted the state’s motion to dismiss child’s] best interests to continue to have was the court’s “duty to preserve the con- and denied the plaintiffs’ motion for sum- a relationship with [respondent], and it is stitutional rights of all parties regardless of mary judgment. inequitable to require [respondent] to pay how unpopular they may be or unpopular According to press reports, the ACLU of the entire cost of maintaining that relation- may be their cause.” “Indeed,” he wrote, Montana was “evaluating all of our options” ship, especially when [appellant] unilater- “this Court finds itself quite sympathetic to and did not consider that its “advocacy on ally moved [the child] across the country the plight of Plaintiffs.” this point was at an end.” The national knowing [respondent] had court-ordered However, he concluded, it was just not ACLU Lesbian & Gay Rights Project, re- visitation with [the child]. [Appellant] has appropriate to award the relief that Plain- porting about the case on its website, indi- demonstrated an ability to contribute to tiffs were seeking. “In sum, Plaintiffs seek cated that they had 60 days to file an appeal the cost of flying [the child] to and from this Court’s order requiring the Montana and that “the journey for fairness is far from Minnesota by her own frequent trips to and legislature to enact a domestic partnership over.” A.S.L. from Minnesota during the course of this or civil union arrangement. In other words, proceeding.” Plaintiffs want this court to direct the legis- Ms. King, the legal mother, argued that lature to enact a set of statutes. This Court the court lacked authority to make this finds that to be an inappropriate exercise award because Hay had withdrawn her of this Court’s power,” he wrote, citing the custody petition, so the statutory custody state constitution’s provision on separation provision, which could support such an LESBIAN/GAY LAW NOTES May 2011 87 order, was not relevant, and the provision Federal Court Rejects Anti- age began arguing with the police, assert- on visitation by itself did not support any Gay Minister’s Claims Against ing that his group could not be removed. such monetary award. The appeals court Philadelphia in Demo Actions When a police officer, Sergeant Craig pointed out that the district judge was not Smith, physically moved Marcavage away relying on statutory authority to make this In a recent case brought by the leader of from the parade, a struggle occurred be- award. “Instead,” wrote Judge Toussaint, an anti-homosexual ministry against the tween Marcavage and several officers after “the district court made such an order be- City of Philadelphia (the City), the U.S. the officers spotted a “silver object” in Mar- cause it considered it ‘inequitable’ not to do District Court for the Eastern District of cavage’s hand. At one point, Smith placed so, given the circumstances of appellant’s Pennsylvania granted the City’s motion for Marcavage in a choke hold. The altercation departure to Arizona, and that it was in the summary judgment. Marcavage v. City of lasted only around 10 seconds, and once the child’s best interests to continue to have a Philadelphia, 2011 WL 1213166 (E.D. Pa., object, a camera, was retrieved from Mar- relationship with respondent.” The court March 31, 2011). Michael Marcavage, the cavage, Smith released him. Marcavage’s of appeals observed that lack of statutory leader of the ministry group Repent Amer- camera was then returned to him. Marcav- authority for a trial court to order a party ica, filed several claims against the City, as age and the police officers then parted ways to defray the other party’s visitation costs well as several police officers as individuals, after a brief argument, wherein Marcavage would not preclude an award that was in asserting that his First, Fourth, and Four- again insisted that his group be allowed to the best interest of the child. teenth Amendment rights had been violat- participate in the march. The court noted a prior case, LaCha- ed during his protest of gay pride parades Marcavage brought a series of constitu- pelle v. Mitten, 607 N.W.2d 151 (Minn. and events. In an opinion by District Judge tional claims against the City of Philadel- App. 2000), review denied (Minn., May Robreno, the court held that Marcavage’s phia and the police officers involved in the 16, 2000), in which a parent was ordered constitutional rights were not violated altercations, as well as an assertion that the to defray travel expenses necessary for their when he was required by police officers to officers had violated his rights under Penn- former spouse to have visitation with the move away from parade participants and sylvania’s Religious Freedom Protection child after a move, and commented that re- protest from a distance. Act, and under 42 U.S.C. § 1983, which fusal to award such relief for lack of express Marcavage, who has brought four simi- “provides a cause of action [to] an individu- statutory authorization would be “inconsis- lar suits against the City since 2006, leads al whose constitutional or federal rights are tent with the district court’s common-law a group of evangelical Christians who con- violated by those acting under [the] color authority to grant equitable relief ‘as the demn homosexuality and regularly protest of law.” While the City brought a motion facts in each particular case and the ends of gay pride events with signs containing for summary judgment on all counts, Mar- justice may require.’” Even though LaCha- Biblical passages. The group also uses bull- cavage chose to abandon his claim brought pelle did not involve a third-party visitation horns to preach, and passes out pamphlets. under the Religious Freedom Protection award, the court insisted that “this distinc- The events concerned in this particular suit Act. The opinion by District Judge Edu- tion has no bearing on the propriety of ap- occurred at Pridefest on June 10, 2007, ardo C. Robreno therefore discusses only portioning visitation expense.” The court Pridefest on June 8, 2008, a Proposition Marcavage’s constitutional claims, focusing also rejected the argument that this award 8 Demonstration on November 15, 2008, primarily on his assertion that the City vio- could be characterized as a child support and the Equality Forum on May 3, 2009. lated his right to free speech and free exer- payment, and emphasized the “extensive At each event, Marcavage and members of cise of religion. discretion” of the district court in decid- his ministry were asked by the police to re- In analyzing a free speech claim, courts ing visitation questions, asserting that “a main a certain distance away from the pa- apply a three prong analysis which “first, reviewing court will not reverse a district rade or event participants. [examines] whether the speech is ‘pro- court’s resolution of such questions absent During the Proposition 8 Demonstra- tected by the First Amendment;’ second, an abuse of that discretion.” tion, Marcavage at one point became sur- determin[es] ‘the nature of the forum;’ and The court of appeals found that the dis- rounded by demonstration participants and third, [establishes] whether the govern- trict court’s findings “indicate the rationale tried to continue preaching although sev- ment’s ‘justifications for exclusion from the for the decision to divide the child’s travel eral police officers, all included individually relevant forum satisfy the requisite stan- expenses” and thus there was no abuse of as defendants in the lawsuit, told him he dard.’” As there was no challenge put forth discretion. needed to move away because the police to religious speech being protected by the Hay is represented by Karim G. El- could not protect him. Marcavage refused First Amendment or to the parade grounds Ghazzawy and Jody M. Alholinna, of the to move, and was finally physically removed being public forums, Judge Robreno ad- El-Ghazzawy Law Offices in Minneapolis. by the police to a safer distance away from dresses only the last step of the analysis: King is represented by M. Sue Wilson and the participants. whether the Philadelphia police had rea- James T. Williamson, of the M. Sue Wilson During the Equality Forum, a shoving sonable justification for moving Marcavage Law Offices, also in Minneapolis.A.S.L. match broke out between one of the mem- and his group members away from the pa- bers of Repent America, Jake Gardner, and rade grounds. a forum participant, after Gardner stepped Relying on the Third Circuit’s decision into the parade being conducted by the in a similar suit brought by Marcavage in forum participants. When the police re- 2008, the court found that the police of- moved Gardner from the parade, Marcav- ficers were justified in their restriction of 88 May 2011 LESBIAN/GAY LAW NOTES

Marcavage’s movements during the events. ing public peace, therefore moving Mar- “loose” and points out that not only did Startzell v. City of Philadelphia, 533 F.3d cavage and his group away from the event Smith let go of Marcavage as soon as the 183 (3d Cir. 2008). The facts in Startzell participants was an action narrowly tailored object was retrieved, and revealed to be a are very similar to the case at issue. Mar- to the purpose of the police: avoiding a camera, but that the officers at no time used cavage alleged in that case that his right public disturbance. Additionally, Marcav- any weapons against Marcavage. to free speech had been violated during a age was never completely silenced at any of As to Marcavage’s assertion that his right pride event, OutFest, when the police ar- these events. While he was asked to move, to freedom of travel under the Equal Pro- rested the members of Repent America af- or physically moved, by the police to a lo- tection Clause of the Fourteenth Amend- ter the group refused to move away from cation slightly removed from the center of ment was violated, Judge Robreno states the event participants. Marcavage and his the events, Marcavage was still allowed to that, like the right of free speech, this right group were causing a disturbance through preach to the participants. Factoring in is not limitless: a person “does not have their preaching, which included bullhorns. both the city’s justifications for restricting boundless rights to travel where he pleases The Third Circuit found that when a group Marcavage’s movements and the means by in a manner disruptive of public, permitted without a permit protests a group that has which the police achieved these purposes, events.” The court also found that Marcav- received a permit to march or congregate the court held that Marcavage’s right to age failed to assert a valid claim. To estab- in a public area, the rights of the group free speech, as well as his right to free exer- lish that one’s rights to equal protection with the permit take precedent. The non- cise of religion, were not violated. were violated, a person must prove that he permitted group cannot be stopped from Finally, Judge Robreno turned to Mar- or she “was treated differently compared protesting entirely, but “the right of free cavage’s remaining claims: that the city to similarly situated persons . . . that De- speech does not encompass the right to violated both his right to be free from fendants did so intentionally, and . .. that cause disruption,” so that “when protes- unreasonable seizure and from unreason- there was no rational basis for the treat- tors move from distributing literature and able force under the Fourth Amendment, ment.” While the police did intentionally wearing signs to disruption of the permit- and his right to freedom of travel under treat Marcavage differently from the parade ted activities, the existence of a permit tilts the Fourteenth Amendment. Marcavage participants, the court states that he was the balance in favor of the permit-holders.” argued that the police seized him dur- not a similarly situated person. The parade Judge Robreno applied the same rea- ing the Proposition 8 Demonstration in participants had a permit to congregate and soning here, reaffirming the principle that 2008 without provocation and did so with speak in a public forum, whereas Marcav- protestors do not have an unlimited right an unreasonable amounts of force. Here, age and his group were counter-protestors to free speech. At each of the events, Mar- there was video evidence of the scuffle that with no permit. Also, the police officers’ ac- cavage did not have a permit to protest the took place between the police and Marcav- tions were rationally based on the fact that pride events and was asked to move away age over Marcavage’s camera. It was this Marcavage was a counter-protestor who from the protesters when his speech began video footage that played a principal role in was disrupting the permitted event as well to incite the event participants in a manner the court’s decision that the officers acted as the general peace. Kelly Garner that not only disrupted the event but also reasonably in seizing Marcavage and re- endangered Marcavage’s safety. The police moving him from the parade, and used Federal Court Refuses to Dismiss officers were acting within the interest of only reasonable force to do so. Generally, Sexual Orientation Discrimination the city, as “the City has a legitimate inter- police officers need “only a ‘minimal level Claim Against Ohio County est in preventing Marcavage—as a coun- of objective justification’” to seize a person ter-protestor of a permitted event—from for a short time. The police officers in this U.S. District Judge James S. Gwin rejected interfering with the message of the permit situation removed Marcavage physically a motion to dismiss a sexual orientation holder and ensuring the safety of both the from the parade after he stepped forward discrimination claim asserted by a les- participants as well as Marcavage and his to protest their removal of Gardner. In try- bian employee against an Ohio county in group.” ing to regain order, Smith had justification Hutchinson v. Cuyahoga County Board of The court found the police officers’- ac to remove Marcavage, whom he viewed as County Commissioners, 2011 WL 1563874 tions to not only be justifiable, but also rea- someone who could potentially escalate the (N.D. Ohio, April 25, 2011). Although he sonable. To reasonably restrict a person’s disruption. The court further found that dismissed some of plaintiff Shari Hutchin- free speech, a state action “must be: ‘[1] the force Smith and the other police of- son’s claims as time-barred, and also reject- justified without reference to the content ficers used in restraining Marcavage while ed an ancillary claim regarding the amount of the regulated speech, . . . [2] narrowly they attempted to retrieve his camera, was of monetary credit for opting out of the tailored to serve a significant governmental neither unreasonable nor excessive. The of- county’s health insurance program, Judge interest, and . . . [3] leave open ample alter- ficers did not know what the “silver object” Gwin found that Hutchinson’s complaint native channels for communication of the was that Marcavage had in his hands, and that she suffered discriminatory denials of information.’” Here, the court found that given the fact that he had just been forc- promotion and other unequal treatment in the police officers did not restrict Marcav- ibly moved away from the parade, it was violation of the 14th Amendment’s Equal age’s movement based on the character of reasonable for the officers to use force to Protection Clause during the two years his speech, but because his message was restrain him and take the object. Although prior to filing her 42 USC § 1983- com causing a disturbance. The city has an in- Smith placed Marcavage in a choke hold, plaint were sufficient to survive the motion terest in protecting its citizens and ensur- the court characterizes the choke hold as to dismiss. LESBIAN/GAY LAW NOTES May 2011 89

The County argued, somewhat incred- which burden he found to be met by the impact homosexual employees,” wrote ibly in light of accumulated case law, that factual allegations in her complaint. This Gwinn, “it is not without a rational basis. sexual orientation employment discrimina- would shift the evidentiary burden to the In addition, to the extent that Hutchinson’s tion claims by a public employee are not County to articulate non-discriminatory claim really targets her inability to qualify actionable under the 14th Amendment reasons for its actions. If it met this burden, for the $100 credit by legally marrying her because the federal courts within the 6th Hutchinson would lose the case unless she domestic partner, that challenge is one bet- Circuit have adopted the analytical frame- could show that the County’s reasons were ter directed at the Ohio legislature’s ban on work developed by the Supreme Court pretextual. same-sex marriage.” A.S.L. for analyzing complaints filed under Title The Defendants also argued that VII of the Civil Rights Act of 1964 when Hutchinson’s complaint failed to allege Who Is Defending the Defense of they received discrimination complaints facts showing that the denials of her pro- Marriage Act? from public employees. According to the motions were due to an “illegal policy or County, because sexual orientation is not a custom” of the County, which would be re- In mid-April, the House of Representa- forbidden ground for discrimination under quired to place liability on the County as tives’ Office of Legal Counsel hired Paul Title VII, such claims cannot be asserted such under Monell v. Dep’t of Social Services, Clement, then head of Appellate Practice against a public employer that is subject to 436 U.S. 658 (1978). “At this early stage of in the D.C. Office of King & Spalding, a Title VII. the proceedings,” wrote Judge Gwin, “and large Atlanta-based firm, to defend Section Judge Gwin rejected this contention out taking Hutchinson’s factual allegations as 3 of the Defense of Marriage Act (which of hand. “This logical leap,” he wrote, “re- true, the Court cannot say that Hutchinson provides that the federal government will quiring imposition of all Title VII’s stan- can prove no set of facts that would support not recognize same-sex marriages as valid dards and limitations in the employment- her entitlement to relief on a Monell claim for any purpose under federal law) against a based equal protection context, is largely against the County.” He concluded that constitutional challenge in Windsor v. Unit- unsubstantiated. The Defendants exclu- requiring her to plead more specific facts ed States, 10 Civ. 8435, pending before U.S. sively rely on Title VII case-law to support prior to discovery “would inappropriately District Judge Barbara Jones (S.D.N.Y.), as their argument. And, for the proposition burden” the plaintiff. “Particularly because well as other pending DOMA cases. The that an employee’s sexual orientation dis- imposing municipal liability depends on plaintiff, Edie Windsor, is suing for - are crimination claim under [42 USC sec. evidence of a municipality’s often internal fund of taxes that she had to pay after the 1983] must fail because Title VII provides authorization or decision-making practices, death of her wife (Canadian same-sex mar- no right of action based on sexual orien- the Court declines to place such a burden riage), due to the refusal by the Internal tation, the Defendants cite a single case: on Hutchinson at the pleading stage.” Revenue Service, constrained by Section 3 the Seventh Circuit’s opinion in Schroeder Hutchinson was unsuccessful, how- of DOMA, to recognize the marriage for v. Hamilton School District, 282 F.3d 946 ever, in her discrimination claim based on estate and inheritance tax purposes. (7th Cir. 2002). The Defendants do not the health insurance credit program. If The Justice Department, which would mention, however, that the Schroeder court an unmarried County employee opts out normally present the government’s defense explicitly declined to import Title VII of participation in the health insurance of the statute, concluded that Section 3 is standards into its equal protection analysis. program, they receive a $50 credit against unconstitutional and that no reasonable le- Id. at 951. Indeed, the Defendants mis- withholding per paycheck. If a married gal arguments can be made in its defense, represent Schroeder’s holding, which works County employee opts out because they the standard that has been articulated in against their argument by applying a tra- are participating in coverage under their the past when the Justice Department has ditional equal protection analysis to the spouse’s insurance, they get a $100 credit. decided not to defend a statute. The Jus- plaintiff employee’s sexual orientation dis- Hutchinson has a domestic partner whose tice Department’s conclusion, in which crimination claim.” employer provides partner coverage, and President Barack Obama concurred, was Judge Gwin pointed out that the Schro- she opted out of the County plan to be also supported by last summer’s ruling by eder court ultimately rejected the plaintiff ’s covered under her partner’s plan. But the the U.S. District Court in Massachusetts claim “because the plaintiff had not dem- County only extended to her the $50 credit in Gill v. Office of Personnel Management, onstrated the disparate treatment necessary accorded to unmarried employees. Ohio 699 F.Supp.2d 374 ( July 8, 2010), now on to maintain an equal protection claim.” He bans same-sex marriage and does not pro- appeal before the 1st Circuit. The Justice also pointed out that there were cases from vide for civil unions or domestic partner- Department informed the 1st Circuit that within the 6th Circuit, precedential for a ships. Hutchinson asserted that denying it will no longer argue that Section 3 is federal district court in Ohio, allowing gay her the full $100 per paycheck credit was constitutional in that appeal, so presumably public employees to assert equal protection discriminatory, but Judge Gwin disagreed, Mr. Clement will appear in that case as well claims. accepting the County’s argument that the as the other pending trial level cases. (A Acknowledging that in the 6th Circuit line it was drawing was based on marital February 28 letter from the Justice Depart- the Title VII analytical framework is ap- status, not on sexual orientation, and that ment to Speaker Boehner listed ten pend- plied, Judge Gwin pointed out that the different-sex domestic partnerships were ing cases, and more are likely challenging initial burden is on Hutchinson to allege treated no differently from Hutchinson’s DOMA’s application to immigration is- facts suggesting that she was denied the partnership. “Although this facially neu- sues.) promotions due to her sexual orientation, tral policy may, at some level, disparately 90 May 2011 LESBIAN/GAY LAW NOTES

Several news reports about the reten- Federal Civil Proposition 8 proponents loudly protested tion of Mr. Clement noted that during his Litigation Notes that this violated the Supreme Court’s de- confirmation hearing as Solicitor General cision that the trial should not be broadcast. in 2005, he was questioned about the Bush Judge Walker had the trial taped anyway for Administration’s refusal to defend several California — The Proponents of Propo- the use of himself and the parties prepar- provisions of federal law that were under sition 8 filed a motion with U.S. District ing post-trial motions and briefs and the attack in the courts, and he articulated this Judge James Ware, seeking to vacate the rul- opinion, and took the tapes with him when same standard for a refusal by a current ing previously issued by now-retired Chief he retired. The Proponents filed a motion administration to defend a statute enacted District Judge Vaughn Walker holding that in the 9th Circuit seeking an order requir- during a prior administration. Under the Proposition 8 (which amended the Cali- ing Walker and the plaintiffs’ attorneys representation contract between King & fornia Constitution to provide that only a to surrender the tapes. Attorneys for the Spalding and the House’s Office of Legal marriage between one man and one woman plaintiffs, alternatively, sought permission Counsel, Clement and two partners would would be valid or recognized in California) for public release of the tapes, and various be working on the case with an expecta- violated the 14th Amendment of the U.S. media entities filed amicus briefs in support tion that fees would amount to $500,000 Constitution. See Perry v Schwarzenegger, of their position. The th9 Circuit sent this or more, and all employees of the firm would 704 F.Supp.2d 921 (N.D.Cal. 2010). The matter to Judge Ware as well. be forbidden from advocating for repealing motion was filed after Walker finally spoke California — Lambda Legal and Mor- Section 3 of DOMA. Questioned about openly about being a gay man and living rison & Foerster LLP announced April 14 how the costs were being covered, House with a long-term same-sex partner. After that they were filing an amended complaint Speaker John Boehner indicated that Judge Walker’s retirement, the case was re- in U.S. District Court on behalf of Karen money would be diverted from the Justice assigned to Judge Ware for any further ac- Golinski, an employee of the 9th Circuit Department appropriation for this purpose, tion on the matter, which is now pending Court of Appeals, alleging that denial of and came under strong criticism by Minor- before the U.S. Court of Appeals for the health insurance benefits coverage for her ity Leader Nancy Pelosi for diverting sub- 9th Circuit (and, by certification of a ques- same-sex spouse under the insurance pro- stantial money to defending an unconstitu- tion concerning standing of the putative gram for Circuit employees violates the 14th tional statute. appellants, before the California Supreme Amendment. Golinski had filed a griev- The retention of King & Spalding, a firm Court). As of now, Judge Walker’s final or- ance with the Circuit’s internal dispute with a strong LGBT diversity policy (and der in the case has been stayed by the 9th procedure, and won a ruling from Chief one of whose lawyers in the Atlanta office Circuit pending resolution of the appeal. Judge Alex Kozinski, sitting as a referee is president of the LGBT bar association In their motion to vacate, Proponents ar- under that procedure, that the relevant laws in Atlanta), provoked substantial adverse gued that Judge Walker’s previously undis- could be construed to allow coverage for her criticism from Human Rights Campaign closed status as a man in a long-term same- partner, to avoid the serious constitutional and Lambda Legal (for whom K&S had sex relationship subjected his impartiality questions that would be raised by a denial, become a significant donor and cooperat- to reasonable questioning (the standard for but the Executive Branch’s Office of Per- ing attorney on pro bono cases) and oth- recusal under the federal judicial code) be- sonnel Management instructed the insur- er places. After a week of such criticism, cause he would have a personal interest in ance company that underwrites the policy K&S announced that it was withdrawing the resolution of the question before the to reject Golinski’s application, and Lamb- from the case. Clement submitted his res- court, and that his failure to disclose these da’s attempt to secure enforcement of Koz- ignation from K&S, and announced that facts deprive Proponents of the informa- inski’s order from the U.S. District Court he would continue to represent the House tion necessary to file such a motion prior foundered on the District Judge Jeffrey of Representatives as a partner at Bancroft to the trial. They disclaimed any argument White’s conclusion that the court lacked PLLC, a small Washington, D.C., right- that the motion was based solely on Judge authority to issue such an order. However, wing boutique firm founded by former Walker’s sexual orientation. Judge Ware set Judge White granted the plaintiff leave to Bush Administration lawyers. By April 25, a deadline of May 13, 2011, for responses file an amended complaint directly contest- when Clement’s resignation from K&S was to the motion, and May 24, 2011, for any ing constitutionality of the denial, which announced, his name appeared as a partner replies by movants to the responses, and is what the new complaint in Golinski v. on Bancroft’s website. The capability of set a hearing for June 13, 2011. News re- Office of Personnel Management does. this small firm to take on the full volume ports about the motion led to editorials This passage from Judge White’s order dis- of pending DOMA defense work has not almost uniformly criticizing the movants, missing the earlier complaint suggests his been addressed publicly. K&S’s withdrawal and pointing out that nobody would sug- openness to the constitutional argument: brought a stream of editorial recrimina- gests that African-American judges recuse “The parties do not dispute, and the Court tions from leading media outlets, echoing themselves from race discrimination cases finds, that the Plaintiff has a clear right to comments from Clement’s resignation or that female judges recuse themselves relief… The court would, if it could, address letter chiding K&S for abandoning repre- from sex discrimination cases. * * * Judge the constitutionality of both the legislative sentation of a client that was asserting an Walker also managed to set off a kerfluffle decision to enact Section 3 of DOMA to unpopular position A.S.L. by using some clips from the video of the unfairly restrict benefits and privileges to Prop 8 trial to illustrate a lecture he was state-sanctioned same-sex marriages or ad- giving. When news spread about this, the dress the conflict regarding the Executive’s LESBIAN/GAY LAW NOTES May 2011 91 decision not to defend the constitutional- agement Company of Clinton, based on a Maine legislature to amend the Act to ity of a law it has determined appropriate complaint by JackieRay Mays, a transsexual provide that the operator of a restroom or to enforce.” Judge White gave the plaintiff who claims that the respondent company shower facility have the authority to decide until April 15 to file the amended - com discriminated in handling her application who may use which gender’s restroom. plaint. A.S.L. to rent one of their apartments. Accord- Michigan — Chris Armstrong, the ing to Mays, the company delayed in mail- openly-gay student body president at Uni- State Civil Litigation ing her an application after she viewed the versity of Michigan, filed suit in Washtenaw a`partment, then denied having received it, County Circuit Court against Andrew Notes and rented the unit in question to another Shirvell, a former assistant state attorney couple who had viewed it after Mays ex- general who allegedly stalked Armstrong California — The 2nd District Court of pressed interest in renting. The investiga- and posted defamatory statements on a Appeal affirmed an award by Los Ange- tor concluded that Mays had lost a fair op- blog about him, as part of a campaign by les County Superior Court Judge Amy portunity to apply for the apartment and Shirvell to discredit Armstrong. Shirvell D. Hogue of $60,400 in attorney fees to was subjected to “less favorable terms and was fired by the attorney general for his ac- plaintiffs who had prevailed on their claim conditions of the rental application status” tions. Armstrong seeks $25,000 damages of hostile environment sexual harassment due to her transgender status. The Maine for emotional distress. The state bar’s At- based on their sex and sexual orientation Human Rights Act has forbidden sexual torney Grievance Commission is consider- but who had been awarded only nominal orientation discrimination in housing since ing petitions by Armstrong and his attor- damages by the jury. Lorenzen v. Vermont 2005, but this reportedly the first housing ney to have Shirvell disbarred, although the Restaurant, 2011 WL 1534538 (April 25, discrimination case brought by a transgen- University police department’s request to a 2011)(not officially published). Jed and der plaintiff to have gotten to the level of county prosecutor to bring stalking charges Wyatt Lorenzen were hired as waiters by a Commission vote, according to an April against Shirvell was declined, purportedly defendant restaurant. They claimed to have 12 article about the case in the Kennebec on the ground that Shirvell was exercising been subjected to a hostile environment in Journal. protected First Amendment free speech violation of the California Fair Employ- Maine — TheBangor Daily News (April rights. Such rights, however, do not nec- ment and Housing Act based on their sex 21) reported that Penobscot County Supe- essarily extend to defamation with actual and sexual orientation. Their allegations rior Court Justice William Anderson re- malice, which is the essence of Armstrong’s included discriminatory discharge, claims jected a motion to dismiss a discrimination charge against Shirvell. Armstrong v. of unwanted sexual advances by two men, claim brought by a transgender elemen- Shirvell, Case No. 2011-369 CZ (Washt- and that they were required to participate tary school student over restroom access enaw Co., Filed April 1, 2011). in a four-day training program without pay, at Orono Elementary School. Although New Jersey — The New Jersey Law forced to forgo statutorily mandatory meal Justice Anderson dismissed part of the Journal reported on April 4 that a Hudson and rest periods, and were not paid wages lawsuit asserting that administrators were County Superior Court jury had found on owed them upon discharge. The jury ruled obligated under the Maine Human Rights January 25 that a gay man who was called in their favor only on the issue of harass- Act to allow a student identified as male at a “faggot” by a security guard in a retail ment, and the court entered a verdict award- birth but who self-identifies as female to store when he refused to check his hand- ing nominal damages of $1,000 to each of use the girls’ bathroom rather than a staff bag while shopping as required by store the plaintiffs. Then the battle over attorney bathroom, he said that other discrimina- policy had no claim for damages under the fees began. Plaintiffs sought $566,510; de- tion claims in the case on behalf of the state’s Law Against Discrimination. The fendants countered that they should only student, who no longer attends that school, factual allegations in Lee v. C.H. Martin receive fees related to the claims on which can go forward. Contending that the main Inc., HUD-L-4941-08 (Hudson Co. Supe- they prevailed, and also urged a substantial issue in the case was bathroom access, the rior Ct., Velazquez, J.) were that Jesse Lee, reduction in light of the nominal damages. school proclaimed victory. According to who had shopped in the store for many Judge Hogue ultimately settled on $60,400 the newspaper report, Justice Anderson, years and was familiar with its policy, had in light of all the circumstances. The plain- rejecting the claim that the student should failed to check his personal handbag when tiffs appealed, contending that they should be allowed to use the girls’ bathroom, he went into the shore to stop. When secu- have been awarded much more. The court wrote: “This accommodation claim would rity guard Damian Barrett demanded that of appeal pointed out that California trial impose upon Superintendent Clency and he check the bag, Lee refused, saying that courts are not required to explain the ba- the various school entities defending this he had the same right to carry a personal sis for their fee calculations. The opinion is suit an obligation to accommodate [the handbag in the store as women who were long and detailed, going into the mechanics child’s] transgender status by allowing her not required to check their handbags. Bar- of civil litigation fee calculation, ultimately to continue using the girls bathrooms con- rett demanded Lee’s compliance with store affirming Judge Hogue’s fee award in the sistent with her gender identity. Neither policy, stating, “Fuck you faggot. You have amount she specified. the language of the [Act], the language of to check the bag,” and they got into a phys- Maine — The Maine Human Rights the [Commission’s] own internal regula- ical confrontation. Lee left the store and Commission voted to uphold its inves- tions, nor prevailing case law interpreting flagged down a police officer, stating that tigator’s recommendation of a finding of the Civil Rights Act requires this type of he was gay and was being harassed and dis- unlawful discrimination by Tisdale Man- accommodation.” A bill is pending in the criminated against by the store. The police 92 May 2011 LESBIAN/GAY LAW NOTES officer told Lee if he wanted to shop there as the New Jersey statute, unlike the fed- killing Belton two days after they had sex. he had to comply with their rules. Barrett, eral Americans with Disabilities Act, does Griffin claimed that Belton had raped him who claimed he didn’t know Lee was gay not preclude a claim that discriminating on Christmas after heavy drinking at Bel- until Lee told the police officer, apologized against somebody because of transsexuality ton’s home, and that he killed him in a rage to Lee and, when Lee demanded it, put is disability discrimination. Devoureau v. when he confronted him about the alleged his apology in writing. Nonetheless, Lee Camden Treatment Associates, LLC t/a Ur- sexual assault. The jury found that the kill- complained to the store’s management, and ban Treatment Associates, Inc. is pending in ing was intentional and not committed in Barrett was discharged by the store. Lee Camden County Superior Court, where the heat of anger, so Griffin faces a poten- then sued for public accommodations dis- the complaint was filed on April 8. Stein, tial sentence of between 45 and 65 years. crimination, seeking compensatory and McGuire, Pantages & Gigl of Livingston, Indystar.com, April 16. punitive damages. Although his claim N.J., represents Devoureau, with Gibson, Maryland — Two teenagers who at- survived a summary judgment motion, Dunn & Crutcher LLP and the Transgen- tacked a transgender customer on April 18 the jury found no cause of action. He was der Legal Defense & Education Fund, Inc., in a McDonald’s restaurant in Rosedale, a represented at trial by Thomas L. Ferro, of associated as counsel in the case. suburb of Baltimore, were arrested by po- Ridgewood. New York — In a letter to the editor lice and may be charged with a hate crime. New Jersey — In an unusual test of the published in the New York Law Journal Chrissy Lee Polis was attacked after using reach of laws forbidding employment dis- on April 22, attorneys Jeff S. Korek and the women’s restroom in McDonald’s, in crimination on the basis of sex or gender Edward H. Gersowitz wrote to commend an assault that was captured on the restau- identity, a New Jersey man who was as- Supreme Court Justice Manuel J. Mendez rant’s security camera and soon went viral signed female sex at birth and subsequently (New York County) for allowing their cli- on youtube.com, leading to national at- went through complete gender transition ent’s life partner of 27 years to remain pres- tention to the case. According to her ac- has filed suit alleging unlawful discrimi- ent in the courtroom during a proceeding count and evidence drawn from the video, nation upon being denied a job that was in which a request for exclusion of non- McDonald’s employees aware of what was open only to men. El’Jai Jordan Devoureau party witnesses had been made. Normally, happening did nothing to intervene, and a was born in Georgia, assigned female sex the spouse of a party is allowed to stay in McDonald’s employee who captured the at birth, but identifies as male and sought the courtroom in these circumstances. Ac- event on video and seemed to be laughing medical treatment, undergoing sex reas- cording to the transcript of proceedings as the assault was unfolding was subse- signment surgery in 2009. He obtained a quoted in the letter, Justice Mendez stated, quently discharged. McDonald’s released new birth certificate from Georgia indicat- “It’s a longstanding relationship of twenty- a statement promptly calling the attack ing male gender, and new social security five [plus] years, and I don’t think a quirk “unacceptable, disturbing and troubling,” records and a new driver’s license, reflecting in the law that fails to recognize their re- an interesting word order. . . Whether Polis his new name and male gender. On June lationship should prevent him from being will seek to hold McDonald’s liable for her 7, 2010, Devoureau interviewed for a job next to his partner at this time.” The case injuries has yet to be announced. as a urine monitor with Urban Treatment is Loiacano v. National Psychological Associa- New Jersey — A Middlesex County Associates, a company that administers tion for Psychoanalysis Inc. and Consolidated grand jury issued a 15-count indictment urinalysis tests as part of substance abuse Edison Company of New York. against Dharun Ravi, or Plainsboro, in- treatment. The job requires observing men Oregon — In Hope Presbyterian Church cluding a hate crime charge, involving bias providing urine samples for analysis, and of Rogue River v. Presbyterian Church intimidation, invasion of privacy, witness the employer will only hire men to do this (U.S.A.), 2011 WL 1565360 (April 27, and evidence tampering, and other charges work. Devoureau presented himself as a 2011), the Court of Appeals of Oregon, re- arising out of the suicide in September of male applicant, accepted a job offer, and re- versing a circuit court decision, ruled that Tyler Clementi, a Rutgers University fresh- ceived training on June 8, 2010. However, a congregation of the Presbyterian Church man who committed suicide after learn- upon reporting for work on June 9, 2010, that was breaking away from the national ing that Ravi and another student, Molly he was told that an “unnamed person” who church over the issue of LGBT rights was Wei, had allegedly used a webcam to spy on purported to know him personally had told governed by the national constitution of Clementi as he was romantically engaged somebody at the company that Devoureau the church, providing that real property with another man in the dormroom that he was female. He insisted that he was male, owned by a congregation was held in trust shared as a roommate with Ravi. but refused to answer when he was asked for Presbyterian Church (U.S.A.). Thus, Texas — Police in Austin, Texas, an- whether he had undergone reassignment the breakaway church could not retain title nounced the arrest of Jose Alfonso Aviles, surgery, and was discharged, never having to the real property. A.S.L. who allegedly murdered his daughter’s been paid for the time he spent in train- girlfriend and the girlfriend’s mother ing. New Jersey law protects the medical Criminal Litigation Notes — Norma Hurtado and Maria Hurtado confidentiality of individuals who undergo — because he was distraught about his gender reassignment. Devoureau filed suit Indiana — Monroe County jurors con- 18-year-old daughter’s sexual orientation. under the New Jersey Law Against Dis- victed Michael Griffin on murder charges The April 19 arrest received widespread crimination, which bans employment dis- on April 14 in the death of Indiana Uni- press coverage. At deadline, the Travis crimination based on sex and gender iden- versity Professor Don Belton in December County District Attorney’s office was still tity. He also pled disability discrimination, 2009. Griffin, a former marine, admitted investigating the case preparatory to decid- LESBIAN/GAY LAW NOTES May 2011 93 ing whether to categorize it as a hate crime. Delaware Legislature Approves collect data about the sexual orientation or Austin American-Statesman, April 20. Civil Union Law gender identity of employees — a depar- Vermont — A Federal Bureau of Inves- ture from the approach under other federal tigation (FBI) agent pursuing the disap- The Delaware House of Representatives civil rights laws, which allow the EEOC to pearance of Lisa Miller and her daughter, voted 26-15 on April 14 to approve S.B. collect data on race or color, religion, sex, Isabella Ruth Miller-Jenkins, has sworn out 30, a bill previously approved by the Senate national origin, age and disability for pur- a federal criminal complaint against Timo- on a vote of 13-6, which will make available poses of monitoring compliance and gener- thy David Miller, a Tennessee evangelical civil unions for same-sex partners effective ating information necessary to analyze dis- Christian pastor, who is charged with aid- January 1, 2012. The civil unions will pro- parate impact claims. Although one might ing in the international parental kidnap- vide the state law rights currently accorded at first blush think that this data collection ping of Isabella by Lisa, who was seeking to married couples. Governor Jack Markell, restriction solely reflects a concern for in- to avoid complying with first a visitation a long-time gay rights advocate in his po- dividual privacy, it also may relate to the order and then a custody order on behalf litical career, pledged that he would sign bill’s eschewal of disparate impact claims, of her former Vermont civil union partner, the measure “as soon as a suitable time and and disavowal of any intention to require Janet Jenkins. United States v. Timothy Da- place are arranged.” The vote came after a employers to provide benefits to same-sex vid Miller, Case No. 2:11-MJ-28-1 (D. Vt., day of debate during which Republicans partners of employees. On the most con- filed April 1, 2011). Isabella was conceived proposed a series of amendments intended tentious issues surround gender identity through donor insemination of Miller when to weaken the symbolic import of the bill discrimination, the bill provides that it does Miller and Jenkins were living as a couple. and strengthen resistance to any eventual not require employers to construct new or When their relationship ended, Miller ini- move by the state to allow same-sex mar- additional facilities, but does require that tiated a proceeding in Vermont to dissolve riages. The measure will make Delaware the employer “provides reasonable access their civil union in that state, thus submit- the eighth U.S. state to create a state law to adequate facilities that are not inconsis- ting herself and Isabella to the jurisdiction institution for same-sex couples parallel tent with the employee’s gender identity as of the Vermont court. In that proceeding, to marriage. U.S. Jurisdictions that allow established with the employer at the time the court awarded custody of the child to same-sex marriage include Massachusetts, of employment or upon notification to the Miller with visitation rights for Jenkins. Connecticut, Vermont, New Hampshire, employer that the employee has undergone Miller, who was living with Isabella, “got Iowa and the District of Columbia. Prior or is undergoing gender transition, which- religion” and renounced her homosexuality; to the Delaware action, the most recent ever is later.” The measure also provides she thwarted Jenkins’ visitation, resulting passage of a civil union bill was in Hawaii. that employers can maintain reasonable in litigation in both Virginia and Vermont, News Journal, April 15. A.S.L. dress or grooming standards during work- culminating in conclusions by the courts ing time. Introduction in the 112th Con- of both states that the original visitation Legislative Notes gress is largely symbolic, since the Republi- order was valid and enforceable. When can-controlled House is unlikely to give the Miller continued to denying Jenkins visita- measure a hearing or a vote, despite a small tion, the Vermont court ordered a change Federal — ENDA: The latest introduction number of Republican members signing on of custody to Jenkins. Miller then disap- of the Employment Non-Discrimination as co-sponsors. A prior version of the bill peared with Isabella, her whereabouts long Act (S.811/H.R.1397) took place in April. that omitted coverage for gender identity a mystery. Now it is alleged that Timothy Lead sponsors in the Senate, where the bill passed the House in 2007. No version of David Miller assisted Lisa Miller in leaving was formally filed in the 112th Congress on the bill has ever passed the Senate. BNA the country and resettling with Isabella in April 14, are Sens. Jeff Merkley (D-Ore), Daily Labor Report, 72 DLR A-11 (April Nicaragua, where they are allegedly living Mark Kirk (R-Ill.), Tom Harkin (D-Io- 14, 2011). in the home of a man related to an employ- wa), and Susan Collins (R-Maine). The Federal — On April 14 Congressional ee of Liberty Counsel, the religious public lead sponsor in the House is Rep. Barney advocates for LGBT rights introduced the interest law firm that has been representing Frank (D-Mass), who presented the bill newest version of the Uniting American Miller. The criminal complaint provides an with 120 co-sponsors on April 6. As in Families Act, which would make family- e-mail trail linking Timothy Miller to the the 111th Congress, the current version of based immigration rights inclusive of bina- case, while indicating that the relationship, the bill would ban intentional employment tional same-sex couples. It is generally ex- if any, between Timothy Miller and Lisa discrimination based on sexual orientation pected that UAFA is unlikely to be enacted Miller is not known. Much more to come, or gender identity by employers subject to as a stand-alone measure, especially given certainly…. Liberty Counsel denied hav- Title VII of the Civil Rights Act of 1964, the current balance of political control in ing any knowledge about the abduction or although this would be stand-alone legis- Congress, but that its features might well the flight from the jurisdiction. Mathew lation rather than an amendment to Title be included as part of a more wide-ranging Staver, dean of Liberty University Law VII. The measure prohibits preferential immigration reform bill. Also on April School and chairman of Liberty Counsel, treatment or quotas, and prohibits retalia- 14, a letter on behalf of 48 members of claimed that the organization lost touch tion for opposing discrimination on these the House of Representatives went to At- with Miller, and told a reporter that allega- grounds. Religious organizations and the torney General Eric Holder and Secretary tions that Liberty Counsel had anything to Armed Forces are not required to comply, of Homeland Security Janet Napolitano, do with this were “absurd.” A.S.L. and the EEOC would not be allowed to asking that in light of the administration’s 94 May 2011 LESBIAN/GAY LAW NOTES determination that Section 3 of the De- Hawaii — The legislature gave final constitutional on the ballot for 2012 is un- fense of Marriage Act (barring recognition approval on April 18 to H.B. 546/S.D. 1, derway with some chance of passage. A bill of same-sex marriages) is unconstitutional, which would ban discrimination on the to that effect was introduced in the Senate the administration put “on hold” the depor- basis of gender identity or expression in on April 26. Prior attempts by Republicans tation of foreign nationals who are partners employment, housing, and public accom- to pass such a measure through the legis- of legal U.S. residents while lawsuits chal- modations. It was widely expected that lature had been blocked by the Democrats lenging DOMA work their way through Governor Neil Abercrombie will sign it when they were in control. Although the the courts. Zoe Lofgren (D-Calif.), rank- into law. Under the bill, the concept of governor, a Democrat, opposes the pro- ing minority member of the House Sub- “sex discrimination” under the existing hu- posed initiative, he would not have any- committee on Immigration Policy and man rights statute would be amended to thing to say about the matter, because the Enforcement, called for suspension of include “a person’s actual or perceived gen- Minnesota procedure for putting proposed deportation proceedings and a temporary der, as well as a person’s gender identity, amendments on the ballot rests on the leg- hold on green card adjudications. Twelve gender-related self-image, gender-related islature and does not give the governor a Senators had previously sent a similar let- appearance, or gender-related expression, role. The proposed amendment would be ter to Holder and Napolitano. Although it regardless of whether that gender identity, essentially identical to California Propo- had briefly looked like the administration gender-related self-image, gender-related sition 8, just substituting “Minnesota” for might be following this route, ultimately appearance, or gender-related expression is “California.” A statute already provides the Executive Branch seems to be holding different from that traditionally associated that marriages between persons of the same firm to the position that despite its doubts with the person’s sex at birth.” When this sex are prohibited in Minnesota, but spon- about the constitutionality of DOMA Sec- measure is signed into law, Hawaii will be- sors of the initiative argue that the Minne- tion 3, it was bound to continue enforcing come the 13th state to ban gender identity sota Supreme Court could not be counted the statute until it is finally declared - un discrimination. BNA Daily Labor Report, upon to defend traditional marriage should constitutional by the courts or repealed by 75 DLR A-9 (April 19, 2011). the question come before it. (It seems to Congress. Illinois — When the recently-enacted make no difference to the proponents that Arizona — Governor Jan Brewer signed civil union law goes into effect on June 1, Minnesota’s Supreme Court was the first into law S.B. 1188, which requires that will religious adoption agencies that refuse in the nation to reject a same-sex marriage adoption agencies give primary consider- to consider same-sex couples as adoptive claim, in Baker v. Nelson, 291 Minn. 310, ation to adoptive placement with a married parents face potential liability for dis- 191 N.W.2d 185 (1971), appeal dismissed, man and woman, with all other criteria be- criminating by refusal services to couples 409 U.S. 810 (1972)). Pioneer Press, April ing equal. The bill does not ban adoptions in civil unions? While state officials were 26. by gay people or same-sex couples, as such. considering whether they would consider Nevada — State Senate Bills 368 and Critics of the measure pointed out that such a refusal to be a violation of state anti- 331, which would outlaw gender identity about a third of the adoptions of children discrimination laws, some members of the discrimination in housing and public ac- in foster care in Arizona are by single peo- legislature were pushing a bill that would commodations, were approved on April ple, making nonsense out of this legislative exempt religious adoption agencies from 25 by votes of 13-8 and 11-10. However, “preference.” The bill goes into effect 90 complying with anti-discrimination laws. Senate Bill 180, which would add gender days after its April 18 signing. AZCentral. Ironically, one of the sponsors of the adop- identity and expression to the hate crimes com, April 18. tion measure was also a sponsor of the civil law, was defeated 10-11, when one senator, California — The California Senate ap- union law, Senator David Koehler, a former Democrat John Lee of North Las Vegas, proved a bill that would mandate that con- minister and the father of a lesbian daugh- crossed party lines to join ten Republicans tributions of gays and lesbians in the state ter. Koehler said that he had promised in opposition, evidently agreeing with the and country be included in the social studies civil union opponents that if that measure Republicans that the legislature should not curriculum for the public schools. The leg- passed, he would craft an amendment that discourage members of the public from islature approved a similar bill in 2006, but would protect faith groups from having to beating up transsexuals, an old Nevada tra- it was vetoed by Governor Schwarzenegger, recognize such unions. Chicago Tribune, dition. The Assembly was expected to take who said that curricular matters should be April 13. However, it was subsequently re- up 368 and 331 quickly, having voted 29- left to local school boards, but who did not ported that the measure was rejected in a 13 on April 20 in favor of Assembly Bill take the opportunity to propose repealing Senate committee by one vote. 211, which would add gender identity to all of the subject matter mandates for the Maryland — The Gender Identity the list of forbidden grounds of employ- public schools in state law. The measure is Anti-Discrimination Act was sent back ment discrimination. ReviewJournal.com, widely expected to pass the legislature and to committee by the Maryland Senate in a April 18 & 25. to be signed into law by Governor Jerry 27-20 vote on April 11, ending hopes that New Mexico — The Clovis, N.M., Brown. According to a New York Times ar- the measure might be enacted during 2011. school board voted on April 26 to forbid ticle about the measure published on April The bill had passed the House in March by non-academic clubs from meeting dur- 16, the San Francisco and Los Angeles a vote of 86-52. The Advocate, April 11. ing the school day in the district’s schools. school districts have already implemented Minnesota — Now that Republicans Students contended that the measure was this on their own. control both houses of the state legislature, intended to prevent a gay-straight alliance a measure to put an anti-same-sex marriage from forming. The new rule was seen as a LESBIAN/GAY LAW NOTES May 2011 95 compromise between those who wanted to work in practice. Perhaps, if puzzled stu- anti-discrimination provisions from pro- ban non-curricular clubs entirely (in order dents have questions about homosexuality posed standards for private foster care and to avoid having to allow a GSA to exist at based on what they’ve seen in the movies, adoption agencies. Under the original pro- the high school) and those who contended on TV, or on-line, and pose their questions posals, such agencies would not be allowed that under the federal Equal Access Act a to their classroom teachers, the teachers are to discriminate in their placement activi- GSA should be allowed under the exist- supposed to respond: “My lips are sealed. ties based on an extensive list of forbidden ing school policies permitting any non- Call up Senator Campfield, who can an- grounds, including sexual orientation. At- discriminatory club to function. Under the swer all your questions.” torney General Ken Cuccinelli, a dedicated terms of this “compromise,” a GSA can be Texas — Dallas County commissioners anti-gay activist, advised the Board that it formed but can meet only before or after voted on April 26 to amend the county’s lacked authority to include grounds that regular school hours. Albuquerque Journal, antidiscrimination policy to add “transgen- were not covered by federal or state law. April 27. der, gender identity and gender expression” Since neither the federal government nor Rhode Island — Announcing that op- to the list of forbidden grounds for dis- the state of Virginia forbids sexual orien- position in the state Senate would make it crimination by the county. The commis- tation discrimination, the board heeded impossible to enact a marriage equality bill sioners had previously voted on March 22 Cuccinelli’s admonition and removed the this year, openly gay Rhode Island House to add “sexual orientation” to the list, and anti-discrimination language before ap- Speaker Gordon Fox announced that in- were immediately met by questions about proving the- standards. Pressure to remove stead he would sponsor a civil union bill, why they had not also included transgender the anti-discrimination language was also since the Senate’s President, Teresa Paiva protection. The vote was 3-2 along party brought on behalf of numerous faith-based Weed, who has opposed marriage quality, lines. We leave it to readers to guess which agencies in the state that were concerned had announced she would support such a party supported which position, just to in- they would be required to consign to hell measure. Fox and Weed are both Demo- ject a little suspense and mystery into the the souls of orphans who might have to be crats. Associated Press, April 27. news. Dallas News, April 26. placed with gay foster or adoptive parents, Tennessee — On April 25, the Tennes- Texas — The Texas House of Repre- including — heavens — couples! They see House passed by a vote of 73-24 and sentatives has approved an amendment to were also concerned that the anti-discrimi- sent to the Senate a bill that would over- a budget bill that would require any public nation provisions might interfere with their ride a Nashville city ordinance that pro- collece that maintains a student center on policies of discriminating based on religion hibits discrimination on the basis of sexual “alternative sexuality” to also provide equal in making placements, as the faith-based orientation by city contractors. Rep. Glen funding for a new student center to pro- agencies preferred to place children with Casada (R-College Grove), the sponsor of mote “traditional values.” The vote in favor adults of the same religious persuasion. the bill, HB600, described it as necessary of adding the amendment to the bill was Associated Press Report (with our editorial to assure “uniformity” for businesses state- 110-24. A center on “alternative sexual- emendations). wide, which might be confused if they were ity” is defined as a center “for students Washington — Reacting to reports required not to discriminate against gay focused on gay, lesbian, homosexual, bi- that Evergreen State College had offered a people when doing business with Nash- sexual, pansexual, transsexual, transgender, queer studies curriculum and sponsored a ville but allowed to do so when dealing gender questioning, or other gender iden- “porn week,” an organization called Time with other customers. This would be too tity issues.” Young Conservatives of Texas, to Clean House has filed a proposed ini- complicated for simple-minded Tennes- which worked with the measure’s sponsor, tiative measure with the secretary of state, see government contracts to comprehend, Rep. Wayne Christian, to garner support, No. 1146, that would close down Evergreen evidently. Knoxville News-Sentinel, April expressed their hope that schools would State College. If the measure is placed on 26. The Nashville City Council passed the response to the measure by defunding the the ballot and passed, the school would be ordinance on April 5 by a vote of 21-15. It “alternative sexuality” centers, or by cut- required to cease operating as a state col- requires companies doing business with the ting their funding in half in order to pro- lege at the end of the 2011-12 academic city to sign affidavits promising not to dis- vide funding for “traditional values” centers year, and to make sure that it could not be criminate on the basis of sexual orientation without increasing their overall spending. continued under another name, the initiate or gender identity. Tennessean.com, April A derisive column about the amendment requires that all of the school’s “assets” be 6. * * * On April 20, the Tennessee Sen- was published in The Texas Observer, be- sold. The measure would also repeal all ref- ate Education Committee voted to approve ginning: “Imagine the plight of the het- erences to the college in state laws, includ- SB 49, proposed by Sen. Stacey Campfield, erosexual student stepping on to a college ing, of course, any that would authorize or a Knoxville Republican, that would pro- campus for the first time. How will he fit recognize its existence or provide funding hibit public school teachers from discuss- in? Should he tell his new roommate about for it. The introductory section of the Ini- ing homosexuality in kindergarten through his alternative hetero lifestyle? Will he tiative explains its rationale: “Taxpayers are eighth-grade classrooms after a study by be bullied, just like he was in high school, supportive of liberal art studies; however, the state Board of Education to determine where he was mercilessly teased for being a they will no longer tolerate that a state- whether such activities are taking place. sexual deviant? Where does a straight per- funded institution hosted a porn week and This measure was nicknamed the “don’t say son turn?” InsideHigherEd.com, April 25. has a history of bizarre behavior such as a gay” bill. Knoxville News-Sentinel, April Virginia — The State Board of Social course curriculum in queer studies. As a 21. We’re trying to figure out how this will Services voted on April 20 to strip out result, taxpayers are of the opinion that the 96 May 2011 LESBIAN/GAY LAW NOTES board of trustees and the governor use The tions adopted by the Defense Department Prison Housing — The Windy City Evergreen State College for the purpose covering medical grounds for deferral of Times reported April 6 that Cook County of nurturing political support from the ex- service. Thus, it could be changed unilater- (Chicago, Illinois) Sheriff Tom Dart had treme left at the expense of taxpayer dol- ally by the Defense Department and would announced a new policy, effective March lars.” A.S.L. not require Congressional action. We have 21, under which transgender detainees noted news reports that the Australian would be house based on their gender Law & Society Notes military accepts transgender personnel, identity, rather than their sex as assigned and has even paid for gender reassignment at birth. The policy was thought to be the Transgender Rights — On April 27 the treatment. first of its kind in the United States. The White House Office of Public Engage- Sexual Minorities in ICE Detention policy provides that transgender detain- ment hosted a meeting with transgender Centers — The Heartland Alliance - Na ees may consult with the Gender Identity rights activists, said to be the first time that tional Immigrant Justice Center filed com- Panel of physicians and therapists before such a meeting solely devoted to transgen- plaints on April 13 with the Department being placed into male or female housing. der issues was held by White House offi- of Homeland Security alleging mistreat- Correctional staff are directed to allow in- cials. Although some transgender rights ment of sexual minorities being detained mates to dress consistent with their gender advocates have been included in wider- in Immigration & Customs Enforcement identity, and provides sensitivity training ranging meetings devoted to LGBT issues, (ICE) facilities pending removal proceed- for correctional staff on transgender issues. this focused attention to trans issues was ings. Advocates for sexual minorities noted A.S.L. said to be a first for any presidential admin- the problems that DHS has had in protect- istration. (Historical note: The first White ing vulnerable individuals in custody from International Notes House meeting with advocates devoted abuse, and urged that some alternative to lesbian and gay issues was convened by method be found for dealing with those Australia — The Honorable Michael presidential assistant Midge Costanza early subject to deportation. The DHS Office for Kirby, retired from Australia’s High Court, in the administration of Jimmy Carter, in Civil Rights and Civil Liberties acknowl- the first openly-gay lawyer to serve on the late 1970s.) edged the filings and promised a prompt the highest court of any nation, is now ROTC — Some major universities that investigation. Legal Times Blog, April 13. the subject of a biography by A.J. Brown, have long excluded the Defense Depart- Conjugal Visits for Gay Prisoners published by Federation Press in Sydney ment’s Reserve Officer Training Corps — The New York Daily News reported on late last year. The book was the subject of (ROTC) from conducting programs on April 23 that New York State Department a lengthy review in the Canberra Times by their campuses have been reconsidering the of Corrections has belatedly responded to Editor-at-Large Jack Waterford, published exclusion in light of the passage in Decem- former governor David Paterson’s man- on April 16. Waterford describes the book ber 2010 of the Don’t Ask Don’t Tell Repeal date to state agencies about recognition of as somewhat of an “authorized biography” Act, which is expected to go into effect be- same-sex marriages by adopting a new pol- because Justice Kirby gave the author ac- fore the end of 2011. Although some such icy of recognizing same-sex marriages, civil cess to his papers and is participating in exclusionary policies date back to the Viet- unions or equivalent domestic partnerships publicizing the book, but Waterford writes nam War era and were premised on oppo- legally contracted in other jurisdictions for that it is not a hagiography and manages sition to the war, the continuing exclusion eligibility to participate in prisoner con- to take a sometimes critical stance towards has been largely based on military policies jugal visit programs. Directive No. 4500 its subject. Justice Kirby is a long-time hu- in conflict with university non-discrimina- of the Department of Corrections, issued man rights advocate, and has written and tion policies that cover sexual orientation. April 21, 2011, added the following state- lectured extensively on LGBT rights. Harvard and Columbia are among major ment to the eligibility requirements for Austria — Rechtskomitee LAMBDA universities that are expected to welcome participation in what is officially called the (RKL), the Austrian gay rights organiza- ROTC back, perhaps as early as the com- “family reunion” program: “In addition, for tion, reports success in getting the Supreme ing academic year. At Stanford, a faculty purposes of this directive the term “spouse” Court to apply for a ruling by the Consti- vote became contentious because the uni- shall also include a person who is the same tutional Court to overturn a statutory ban versity’s non-discrimination policy encom- sex as the inmate if the same-sex marriage on the use of donor insemination by lesbian passes gender identity, and the implemen- or civil union was performed in an outside couples. When Austria established regis- tation of the DADT Repeal Act will not jurisdiction that recognizes such marriages tered partnerships for same-sex couples, end the military’s rules against service by or civil unions. Counsel’s Office may be effective January 1, 2010, it included in transgender people. Some student and fac- consulted to determine whether the out- the law a provision banning medically- ulty advocates mounted a campaign to re- side jurisdiction does authorize same-sex assisted procreation for lesbian couples, ject ROTC over this issue, but the Faculty marriages or civil unions.” According to even though same-sex couples have a right Senate approved the proposal to reinstate the Daily News report, 20 of the state’s 67 to adopt in Austria. Christina Buaer, an ROTC by a vote of 28-9 with three absten- correctional facilities currently have fam- Austrian citizen, and Daniela Bauer, a Ger- tions after what was described as “an emo- ily reunion programs. A spokesperson for man citizen, became registered partners in tional two-hour debate.” Los Angeles Times, DOC told the news that he was unaware Germany in 2008 and then moved to the April 29. The transgender exclusion is not that any prisoner had yet requested a family Austrian city of Wels. Christina wants to statutory, but rather is included in regula- reunion with a same-sex spouse. have a child through donor insemination LESBIAN/GAY LAW NOTES May 2011 97 with the agreement of Daniela, but under that were untrue about what was going on or to the marriage and she would not have the statute doing so could subject them to in the club, known as Q Bar. consented to marry had she known about criminal prosecution, with potential pun- Germany — The government ordered it. The judgment in B. (formerly known as ishment of a fine and a short prison sen- the expulsion from Germany of a visiting M.) v. L., (2009) IEHC 623, delivered by tence. They have sued in both the regular Islamic preacher, Bilal Philips, after he gave Mr. Justice Henry Abbott on July 17, 2009, courts and the constitutional court. In the an open-air address in Frankfurt stating was summarized on April 4, 2011, in the regular courts, the claim is that the restric- that homosexuals should be condemned to Irish Times. M. and L. married in 1978. tion violates the European Convention on death. Immigration authorities instructed The couple separated in 1993, but M. did Human Rights, and in the Constitutional the Jamaican, a 60-year-old Islamic con- not initiate divorce proceedings until 2005, Court that it violates individual rights vert, to leave Germany within three days, after having undergone sex reassignment guaranteed in the Austrian Constitution. asserting that his statements violated Ger- treatment. L.’s defense in the divorce pro- The Supreme Court, rejecting the view of man law, which provides for the expulsion ceeding was to seek a declaration of nul- the District Court and the Regional Court of visitors who “incite hatred against parts lity on grounds of inability to enter and of Wels, agreed with the applicants, find- of the population” or advocate the use of sustain a marriage. The court found that ing that the right to conceive a child and violence against particular groups. Philips as the husband had hidden the true nature make use of medically assisted procreation advocated the death penalty against homo- of his sexual identity from his wife, “there for that purpose are protected by Article 8 sexuals on the ground that homosexuality was a lack of consent on the part of the of the Convention. At the national level, was “evil and dangerous to society,” accord- petitioner wife because of the presence of however, only the Constitutional Court has ing to an article posted on his website. gynephilic transvestism which was pres- authority to declare the statute unenforce- Deutsche Welle, April 21. ent throughout the marriage but was con- able. If it does so, there will be no need Hungary — A new draft constitution cealed before and after by the husband. The to bring the matter to the European Court to replace Hungary’s communist-era con- lack of consent rendered the marriage void of Human Rights. The ruling by the Su- stitution has been criticized for failing to rather than voidable.” The court found that preme Court was issued March 22 in OGH include sexual orientation or gender iden- the wife “lacked capacity to enter into and 22.03.2011, 3 Ob 147/10d. (Austrian cases tity as specified prohibited grounds for sustain a marriage to a person in the hus- do not cite the names of parties, referring to discrimination, for including a definition band’s condition; to this extent the parties cases only by docket numbers, according to of marriage limited to the union of a man lacked the capacity to sustain a marriage our source, Dr. Helmut Graupner of RKL.) and a woman, and for protecting “human with each other, and the wife did not give a Canada — The Assembly of Catholic life” from conception, thus effectively ban- full, free and informed consent to her pur- Bishops of Ontario and the Ontario Cath- ning abortion, showing Hungary to be out ported marriage.” The newspaper provided olic School Trustees’ Association has issued of step with newer trends on the European no explanation as to why it was reporting a memorandum to Catholic high schools continent. Nonetheless, the president of in April 2011 about a judgment rendered in Ontario indicating that students will be the country, Pal Schmitt, signed it into law in 2009. allowed to form groups that address “bul- on April 25. Amnesty International criti- Ireland — The Equality Tribunal has lying related to sexual orientation.” While cized the new constitution as being insuffi- awarded 35,000 euros to Louise Hannon, continuing to oppose allowing students to ciently protective of human rights and vio- a transgender woman from Dublin, whose form Gay-Straight Alliances, the Catholic lating international and European human employer ordered her to dress as a man for leaders have reportedly bowed to pressure rights standards. Deutsche Welle, April 25. client meetings, to avoid using the women’s from gay students to allow the formation India — Several parties filed appeals restroom, and to work at home because her of clubs to help students who are bullied from the historic decision by the Delhi presence at the office “created a bad atmo- because they are gay. Brampton Guardian, High Court holding unconstitutional In- sphere.” Angela Kerins, chair of the Equal- April 28. It is not entirely clear what dis- dia’s criminal sodomy law. A hearing had ity Tribunal, made a statement in connec- tinction is being drawn here. Presumably, been scheduled by the Supreme Court for tion with the decision: “Transsexual people the clubs will not be able to advocate that April 20, but the bench announced on that are born into a society which is not struc- homosexuality is “normal,” but will be able date that the matter was being adjourned tured to cater for their own identity. The to advocate that bullying gay students is without specifying a date for the next hear- journey undertaken by transsuxal people “wrong.” As usual, the church likes to split ing, saying only that the matter would be to recognize their own identity, as being hairs in its dealing with gay issues. taken up again after the court’s summer va- different from their assigned identity,- in China — The New York Times reported cation. In the meantime, the High Court’s volves a process and decision-making that on April 5 that more than sixty employees order barring enforcement of the sodomy is both courageous and beyond the capacity and patrons at a gay bar in Shanghai were law, derived from British colonial criminal of many to fully appreciate.” Advocate.com, arrested in a police raid early on April 4 and law, remains in effect. Daily Pak Banker, quoting Independent.ie, April 22. were held for more than 12 hours by police. April 20. Japan — For the first time in Japan, an The local press reported that police were Ireland — The Irish High Court granted openly gay candidate has won political of- investigating reports that a male go-go an annulment of a marriage to the wife of fice. The Japan Times reported on April 26 dancer in the club had presented a “porno- a transsexual, finding her marriage should that Taiga Ishikawa, a 36-year-old writer graphic” show. Some of the patrons claim be treated as void where her former spouse and activist, won a seat on the Toshima that they were pressured to sign statements had failed to disclose his transsexuality pri- Ward Assembly in Tokyo in an election 98 May 2011 LESBIAN/GAY LAW NOTES held on April 24. Ishikawa is the former who have clinical problems, not for health months, and in the Senate before the end of secretary to Social Democratic Party leader people who refuse to become pregnant the the year. Uruguay decriminalized gay sex in Mizuho Fukushima. He published a “com- old fashion way. On the other hand, the 1934, long before most western countries, ing out” book, “Where Is My Boyfriend?” Health Minister, Leire Pajin, said that the and was the first county in South America in 2002, and in 2004 started a non-profit national health system should not discrimi- to legislate civil unions for same-sex cou- group to provide a meeting place for gay nate against anybody based on sexual pref- ples, in 2007. A.S.L. people. Reacting to his election, he stated, erences. El Pais (English edition), April 27. “I hope this news will give hope to lesbian, Uganda — Contrary to an Associated Professional Notes gay, bisexual and transgender people who Press story that received some play late in still feel isolated from the society. I will April, David Bahati, the moving force be- Massachusetts Governor Deval Patrick has do my best to make Toshima Ward more hind the draconian anti-gay criminal bill nominated Associate Justice Barbara A. friendly to LGBT people, young people pending in the Ugandan Parliament, was Lenk of the Massachusetts Appeals Court and foreigners.” not planning to remove the death penalty to a seat on the Supreme Judicial Court. Russia — Nikolay Alexeyev, organizer of from the bill in hopes of making it more Lenk married her same-sex partner after gay pride activities in Moscow, announced palatable for legislators, according to sev- the Supreme Judicial Court ordered mar- that Moscow authorities have informed the eral late-April on-line reports, mostly nota- riage equality in the state, and would be parade organizers that they have permis- bly one on the website Box Turtle Bulletin the first openly gay justice on the state’s sion to hold a gay pride event in Moscow (April 26). Some speculated that putting highest court. A native of New York, Lenk on May 28. The rally, entitled “Moscow out the story about reducing penalties earned a PhD in political philosophy from Gay Pride Parade: Homosexuality in the under the bill was a ruse by Bahati to se- Yale and a JD from Harvard. She is known History of World Culture and Civiliza- cure legislative hearings, which have been as a specialist in civil litigation and First tion,” is authorized for an attendance of stalled due to international protests. Even Amendment issues. up to 500 people. Such events had been if the death penalty were removed, the al- ACLU of Southern California LGBT banned by the administration of former ternative would be life imprisonment in a rights staff attorney Christine Sun has Mayor Yury Luzhkov, who was recently re- Ugandan prison for engaging in consensual resigned to become Deputy Legal Direc- moved from office by the President of the gay sex — broadly defined. The deadline tor at the Southern Poverty Law Center in Russian Federation. Interfax-religion.com, for passage in this session of the Parliament Montgomery, Alabama. April 26. would be May 12, so the first few weeks in Lambda Legal has announced that Scotland — An Employment Tribunal May are a critical time. Bahati stated with staff attorney Camilla Taylor will be the in Glasgow awarded 10,000 UK pounds confidence that if he could get the matter new director of the organization’s Mar- in damages to Tracey West, a former po- put to a vote, the bill would pass. riage Project. Taylor was lead counsel for lice officer, finding that she had been -sub United Kingdom — The Leeds-based Lambda in Varnum v. Brien, in which the jected to homophobic harassment by Ser- Catholic adoption agency, Catholic Care, Iowa Supreme Court ruled unanimously in geant Michael Service over a period of six which sought an exemption from laws ban- favor of same-sex marriage rights under the months. West claimed the harassment was ning discrimination based on sexual ori- state constitution. She was previously em- so severe that she had to quit her job and entation, lost its battle before the Charity ployed as a staff attorney at the Criminal ultimately moved to Australia. Service, Tribunal. The Guardian (April 27) reported Appeals Bureau of the Legal Aid Society who has since left the police force, claimed that on April 26 the Tribunal affirmed a of New York, and prior to that an associate that West made up her claims in order to prior decision by the Charity Commission, with Shearman & Sterling. Taylor earned collect damages to defray her costs of mov- holding that the agency was not entitled to her B.A. from Yale and her J.D. from Co- ing to Australia, but the Tribunal found her a religious exemption from the 2007 Sexual lumbia. She replaces Jennifer C. Pizer, more credible. The damages were divided, Orientation Regulations, and will be re- who recently resigned as Lambda Legal’s 7500 being assessed personally against Ser- quired to considers gay and lesbian couples Marriage Project Director to become the vice and 2500 being assessed against the on an equal basis with non-gay couples as Legal Director for the Williams Institute Galloway police force. Glasgow Daily Re- prospective parents. at UCLA Law School, an LGBT rights cord, April 5. Uruguay — Rex Wockner’s Interna- think-tank. Spain — The battle is on over access to tional News email letter reported April 11 Lambda Legal has announced the hir- fertility treatment for lesbians seeking to that gay rights activists in Uruguay, inspired ing of Ivàn Espinoza-Madrigal as a staff have children in Spain. Silvia Garcia, who by legalization of same-sex marriage in Ar- attorney in its national headquarters office went to a hospital seeking assistance in be- gentina last year, have had a similar bill in- in New York. Madrigal comes to Lambda coming pregnant through donor insemina- troduced in their country’s Parliament by a from the Mexican American Legal De- tion, was turned away, told that they had member of the ruling Frente Amplio coali- fense and Education Fund in San Antonio, orders from the Asturias Regional Health tion, Deputy Sebastian Sabini of the Peo- where he focused on constitutional rights Department “not to accept lesbians or sin- ple’s Participation Movement party. An of immigrants. For Lambda, he will be de- gle women.” Catalonia and Murcia also re- April 10 report from an on-line Australian veloping an initiative on behalf of LGBT portedly exclude lesbians from fertility pro- source, starobserver.com.au, indicated that people of color, LGBT immigrants, and grams. The Asturias government takes the the measure was expected to come to a vote low-income LGBT communities. Before position that these programs are for people in the Chamber of Deputies in the next few working at MALDEF he was a litigation LESBIAN/GAY LAW NOTES May 2011 99 associate at Fried, Frank, Harris, Shriver & tion to Joseph or his mother. Mrs. Belmare after her claim accrued. Doe argued that Jacobson LLP. Madrigal graduated from allegedly disclosed the information to Jo- her claim against HHC was not a common NYU Law School and clerked for Judge seph. Plaintiff claims that as a result of this law personal injury tort claim, but rather Eric Clay (U.S. Court of Appeals, 6th Cir- disclosure, she was “harassed and threat- was based on a statute, PHL Article 27- cuit) and Judge Ronald Ellis (U.S. District ened by Joseph and his friends,” leading F, and should be analogized to civil rights Court, S.D.N.Y.). her to obtain an order of protection against claims filed against HHC under the State On April 7, the U.S. Senate Judiciary Joseph. Further, as a result of this unau- Human Rights Law, which are not subject Committee unanimously endorsed Presi- thorized disclosure, plaintiff “claims to have to the Section 7401 requirements. dent Obama’s nomination of J. Paul Oet- lost friends, suffered threats and menacing The court sided with Jane Doe on this ken, a senior V.P. and Associate General behavior, and suffered emotional harm and point. “Public Health Law Article 27-F Counsel at Cablevision, to a seat on the mental anguish.” was enacted upon the recognition that U.S. District Court for the Southern Dis- The plaintiff filed this Jane Doe lawsuit ‘maximum confidentiality protection’ for trict of New York. Oetken is one of the on June 25, 2010, just within three years af- HIV related information was ‘an essential president’s handful of openly-gay judicial ter the date of the alleged wrongful disclo- public health measure” and that ‘strong nominees. A.S.L. sure of her HIV status, asserting a violation confidentiality protections can limit the of Article 27-F and its implementing regu- risk of discrimination and the harm to an HIV/AIDS lations, and alternatively claiming a breach individual’s interest in privacy.’ It provides of fiduciary duty by the hospital and HHC that any person who discloses confidential Legal Notes by revealing her confidential HIV status to HIV related information in violation of Joseph. An essential element of the claim section 2782 shall be subjected to a civil NY Court Finds Longer of Two is that Mrs. Belmare’s actions are attribut- penalty, and that any person who willfully Statutes of Limitations Applies able to HHC under the theory of respon- does so shall be guilty of a misdemeanor. to HIV-Confidentiality Law Suit deat superior, by which an employer is made These are characteristics of a claim based Against City Hospital Corporation to answer for acts committed by employees on a statute, akin to a claim pursuant to the within the scope of their employment. Executive Law for discrimination, and not Ruling on a question of first impression, The hospital moved to dismiss on the a standard claim for personal injury. It is New York State Supreme Court Justice ground that as a unit of HHC it was not apparent to this court that Public Health Lawrence Knipel rejected a motion to dis- amenable to suit as a distinct entity. Doe Law Article 27-F was enacted to protect a miss as time-barred an action filed against agreed to dismissal on that ground, leaving vulnerable class of individuals and in this the New York City Health and Hospitals Mrs. Belmare and HHC as codefendants. regard, is dissimilar to a standard personal Corporation (HHC) for an HHC em- HHC moved to dismiss, arguing that injury action to which Unconsolidated ployee’s breach of the state’s HIV confi- Mrs. Belmare was acting in her individual Laws section 7401 applies. Thus, the re- dentiality law, Public Health Law Article capacity and not as an HHC employee quirement of the Unconsolidated Laws for 27-F, finding that a damage claim founded when she disclosed the information to her service of a notice of claim within a short- on such a violation did not fall within the son, so the claim founded on respondeat su- ened statute of limitations does not apply scope of the shortened statutory notice perior should be dismissed as a matter of to this action.” and filing requirements applicable to per- law on that basis. Doe argued that there In effect, suing based on the statute vin- sonal injury claims against HHC. Doe v. was strict liability for violation of 27-F, re- dicates a public policy concerning protec- Belmare, 15908/10, NYLJ 1202490617574, gardless of how the information got out of tion of the confidentiality of HIV-related at *1 (N.Y.Sup.Ct., Kings Co., March 31, the hospital’s records to an unauthorized information, because of the discrimination 2011). The ruling was reported in the New person, and also that she should have an and that might flow from unauthorized York Law Journal on April 20, 2011. opportunity to conduct discovery in sup- disclosure (as allegedly occurred in this According to Justice Knipel’s opinion, port of the respondeat superior theory. Jus- case), and is thus not merely a personal in- the “Jane Doe” plaintiff was admitted to tice Knipel found that this motion should jury claim. Kings County Hospital for treatment of a not be decided prior to discovery; in es- Jane Doe is represented by Suzanne stomach ulcer and phoned several people to sence, application of respondeat superior may Skinner, an attorney at Paul, Weiss, Rif- let them know about the admission, includ- turn on disputed facts. kind, Wharton & Garrison LLP. HHC is ing her former boyfriend, Joseph Belmare. Most significantly, however, HHC has represented by Toni Gantz, Assistant Cor- Two days later, Belmare’s mother, an HHC also moved to dismiss on grounds of the poration Counsel from the City Law De- employee, visited the plaintiff in the hospi- statute of limitations. Characterizing Doe’s partment. A.S.L. tal, asked for her last name, and used that claim as essentially a personal injury tort information to access her hospital medical claim, HHC argued that under NY Un- HIV/AIDS records, which contained the information consolidated Laws Section 7401, personal that plaintiff was HIV+. The opinion does injury claims against HHC are subject to a Litigation Notes not indicate whether plaintiff knew about relatively short notice of claim requirement, her HIV status prior to her hospitalization, and an abbreviated statute of limitations of California — In a complicated case in- but implies that in any event she had not one year plus 90 days. Doe had never filed a volving construction of the Full Faith and herself previously disclosed this informa- notice of claim, and sued almost three years Credit Clause, Art. IV, Sec. 1 of the U.S. 100 May 2011 LESBIAN/GAY LAW NOTES

Constitution, the California 2nd District was affirmed in this ruling by the Court of on letters submitted by R.J.’s doctors. The Court of Appeal affirmed a decision by Los Appeal. The court rejected appellants’ ar- court found that there was “no residuum Angeles Superior Court Judge John A. Kro- gument that the court’s full faith and credit of legal and competent evidence in the re- nstadt dismissing a suit by HIV+ Califor- obligation extended only to the substance cord supporting the hearsay conclusions” in nia domestic partners against their health of the Missouri court’s ruling, finding that the letters from R.J.’s doctor, and thus “it insurer for breach of contract and related it was obligated to give that ruling the effect was error for the ALJ to have made factual claims, due to full faith and credit owed to it would have under Missouri law, which findings based on those hearsay letters,” a prior Missouri decision in a declaratory included precluding any counterclaims that and that both the judge and the Commis- judgment action brought by the insurer. were required to have been presented and sion had improperly relied on testimony R.S. v. Pacificare Life and Health Insurance resolved as part of the case. The opinion from a doctor without relevant expertise. Co., 2011 WL 1367039 (April 12, 2011). by Acting Presiding Judge Rubin is lengthy “There is no scientific evidence whatsoever The case is factually and procedurally com- and detailed, and would make interesting that R.J.’s medications, either individually plex and would merit lengthier treatment if reading for scholars of the full faith and or in combination, could have affected the this were a newsletter about full faith and credit clause. test results in any way or produced a false credit and its application in commercial lit- New Jersey — The Appellate Division positive for cocaine,” wrote the court, find- igation. Briefly stated, the plaintiffs bought ruled on April 13 that the Civil Service ing irrelevant that the medical review of- health insurance policies from the defen- Commission had improperly ordered the ficer did not obtain a complete list of R.J.’s dant, a Missouri corporation, in 2004, dis- reinstatement of an HIV+ corrections of- medications before administering the test, closing in their applications that they were ficer who had tested positive in a drug since there was no evidence any of those HIV+. After they had submitted claims, screening. In the Matter of R.J., Depart- medications would produce a false positive the defendant, realizing its “mistake” in is- ment of Corrections, 2011 WL 1376313 for cocaine. Consequently, the evidence on suing the policies, stopped paying benefits (unpublished). R.J. began working as a the record showed that “R.J. tested positive and, in June 2008, filed a declaratory relief corrections officer for the state in 1988. for cocaine because he ingested it.” action in Missouri state court, seeking re- He was diagnosed as HIV+ in 2003, and New York — Housing Works reported scission of the policies, claiming as grounds takes a mix of medications several times a that U.S. Magistrate Judge Cheryl Pol- misrepresentation of state residency, fraud- day. “Those medications,” wrote the court, lak announced at an April 27 hearing on ulent submission of multiple claims, and “along with his illness, negatively affect his compliance with the continuing court or- misrepresentation about the existence of immune system, making him susceptible to der in Henrietta D. v. Bloomberg, 246 F.3d other insurance coverage. While that case respiratory infections and bronchitis that 176 (2d.Cir. 2001), order on remand, 2001 was pending, plaintiffs filed a counterclaim require him to take additional medications.” WL 1602114 (U.S. Dist. Ct., E.D.N.Y., for breach of contract, and obtained a pre- On February 17, 2006, he was selected for Dec. 11, 2001), that cuts in staffing for New liminary injunction ordering the insurer to a random drug screen pursuant to depart- York City’s HIV/AIDS Services Adminis- resume paying on their claims, retroactively ment policy, and tested positive for cocaine tration (HASA) that had been announced and prospectively. Plaintiffs claim that de- and negative for all other tested substances by New York City may not be implement- fendants refused to resume making the pay- including opiates. Before testing, he had ed. In Henrietta D., the court mandated a ments. In June 2009, plaintiffs voluntarily completed a form listing some of the medi- staffing level for HIV/AIDS services of at dismissed their counterclaim and filed an cations he was taking. (He was taking so least one case manager for every 34 agency action in California state court on claims many that there was not room on the form clients. The proposed cuts announced by that the insurer’s failure to pay benefits to list them all.) After a confirmatory test the Bloomberg Administration would have had damages plaintiffs’ health because they also showed positive for cocaine, Depart- required the layoff of 254 case managers, could not afford to pay for medication and ment of Corrections moved to dismiss him. seriously inflating the client-to-case- man- health care, asserting legal claims of breach He submitted a letter from his physician, ager ratio above the level mandated by the of contract, breach of implied covenant of who suggested a specimen mix-up might court and violating Local Law 49. Hous- good faith and fair dealing, and unfair busi- have occurred, as R.J. denied using cocaine. ing Works reports that the agency currently ness practices. The insurers got the Califor- DOC did not do further testing, preferring serves approximately 45,000 individuals, nia action stayed while the Missouri action to rest on the results it had obtained. The all of whom are either low-income persons was pending. In February 2010, the Mis- case then turned into a battle of “experts,” living with HIV or dependents of those souri court entered judgment for plaintiffs, although, according to the court, R.J.’s med- living with HIV. The proceeding before rejecting every argument by the insurer in ical testimony did not come from individu- Judge Pollak was initiated by an applica- support of rescission and ordered payment als with relevant expertise, and the state’s tion for a temporary restraining order filed on all valid claims past, present and future. experts persuasively showed that the posi- by Housing Works and co-counsel Mat- Then the California court lifted the stay, tive result could not have been due to the thew Brinckerhoff, the HIV Law Project, and the insurer moved to dismiss, citing the prescription medications R.J. was taking. and attorney Virginia Shubert. Accord- full faith and credit clause and a Missouri The ALJ found that DOC erred in not ob- ing to the press release issued by Housing statute mandating the assertion of all coun- tained a complete list of R.J.’s medications Works, Mayor Bloomberg attempted to cut terclaims that a respondent might have in prior to administering the drug screen, thus the agency’s staff by one-third last year as a declaratory judgment action. The Cali- making the result flawed, and the Com- a budgetary measure, but backed down af- fornia trial court granted the motion, and mission adopted the ALJ’s findings, relying ter a similar motion was filed with Judge LESBIAN/GAY LAW NOTES May 2011 101

Pollak. The judge told city attorneys at the not be before May 11, 2011. Please indi- gation aimed at the Supreme Court is not April 27 hearing that if they do not pro- cate in your cover letter how you learned of premature). vide evidence to show that staffing will be the job opening. Emens, Elizabeth F., Regulatory Fictions: maintained within 30 days, she will issue On Marriage and Countermarriage, 99 Cal. an enforcement order that would subject LGBT & RELATED ISSUES L. Rev. 235 (February 2011). the City to contempt charges if it did not Ericsson, Kate, Book Review, From Dis- comply. Bhagwat, Ashutosh, Associations and Fo- gust to Humanity: Sexual Orientation and Australia — The Adelaide Magistrate’s rums: Situating CLS v. Martinez, 38 Hast- Constitutional Law by Martha C. Nussbaum, Court sentenced Stuart McDonald to six ings Const. L. Q. 543 (Spring 2011). 26 Berkeley J. Gender L. & Just. 179 (Win- years in jail for lying about his HIV+ status Blain, Simon, and Anna Worwood, Al- ter 2011). to several sexual partners who seroconver- ternative Families and Changing Perceptions Eskridge, William N., Jr., Noah’s Curse: ted after having unprotected sex with him. of Parenthood, 41 Fam. L. 289 (UK) (March How Religion Often Conflates Status, Belief, McDonald told a reporter that he thought 2011). and Conduct to Resist Antidiscrimination it was unfair to require an HIV+ person to Bodensteiner, Ivan E., Congress Needs to Norms, 45 Ga. L. Rev. 657 (Spring 2011). disclose his status. “Once you get tested, Repair the Court’s Damage to § 1983, 16 Tex. Goldman, Lee, Student Speech and the you go on a register and then you can’t have J. on C.L. & C.R. 29 (Fall 2010). First Amendment: A Comprehensive Ap- unprotected sex with anyone anymore,” he Brennan, Carey, Perry v. Schwarzeneg- proach, 63 Fla. L. Rev. 395 (April 2011). complained to reporter Sean Fewster in a ger: A Large Step in the Direction of Mar- Goldstein, Tom, and Amy Howe, But conversation on the courthouse steps just riage Equality in California, 20 L. & Sexu- How Will the People Know? Public Opinion prior to his trial. The Advertiser (April 9). ality 121 (2011). as a Meager Influence in Shaping Contempo- “It’s awful, not being able to have unpro- Brownstein, Alan, and Vikram Amar, rary Supreme Court Decision Making (Book tected sex — sex with condoms really isn’t Reviewing Associational Freedom Claims in Review), 109 Mich. L. Rev. 963 (April good,” he insisted, rejecting the idea that a a Limited Public Forum: An Extension of the 2011) (review of The Will of the People: How person who knows he is HIV+ has a duty Distinction Between Debate-Dampening and Public Opinion Has Influenced the Supreme to the community to avoid spreading the Debate-Distorting State Action, 38 Hastings Court and Shaped the Meaning of the Consti- virus. McDonald insisted that thousands Const. L. Q. 505 (Spring 2011). tution, by Barry Friedman). of gay men in Adelaide were infected with Cahill, Courtney Megan, Disgust and Green, Sonia Bychkov, Currency of Love: HIV, having been tested out-of-state so the Problematic Politics of Similarity (Re- Customary International Law and the Battle they would not be on the local register and view essay), 109 Mich. L. Rev. 943 (April for Same-Sex Marriage in the United States, could continue having unprotected sex in 2011) (review of From Disgust to Humanity: 14 U. Pa. J. L. & Soc. Change 53 (2011). Adelaide. A.S.L. Sexual Orientation & Constitutional Law, Harrington, Peter J., Untying the Knot: by Martha C. Nussbaum). Extending Intestacy Benefits to Non-Tra- PUBLICATIONS Calo, M. Ryan, The Boundaries of Privacy ditional Families by Severing the Link to Harm, 86 Ind. L.J. 1131 (Summer 2011). Marriage, 25 J. Civ. Rts. & Econ. Dev 323 NOTED & Camp, Max V., O’Donnabhain v. Com- (Winter 2011). ANNOUNCEMENTS missioner: Treatment Costs for Gender Iden- Houlihan, Annette, When “No” Means tity Disorder Are Tax-Deductible Medical “Yes” and “Yes” Means Harm: HIV Risk, Con- Expenses, 20 L. & Sexuality 133 (2011). sent and Sadomasochism Case Law, 20 L. & Movement Position Available — The Capers, I. Bennett, Home is Where the Sexuality 31 (2011). ACLU Foundation LGBT & AIDS Proj- Crime Is (Book Review), 109 Mich. L. Rev. Huffman, M. Blake, North Carolina ect in New York has a staff attorney posi- 979 (April 2011) (review of At Home in the Courts: Legislating Compulsory Heterosexu- tion available in the New York office. The Law: How the Domestic Violence Revolution ality by Creating New Crimes Under the position involves constitutional and statu- is Transforming Privacy, by Jeannie Suk). Crime Against Nature Statute Post-Law- tory litigation and policy work on LGBT Connolly, Catherine, Gay Rights in Wyo- rence v. Texas, 20 L. & Sexuality 1 (2011). and HIV-related issues nationwide. Fed- ming: A Review of Federal and State Law, 11 Jacobs, Charles F., and Christopher E. eral litigation experience is preferred, as Wyoming L. Rev. 125 (2011). Smith, The Influence of Justice John Paul Ste- well as familiarity with LGBT rights and Cruz, David B., Sexual Judgments: Full vens: Opinion Assignments by the Senior As- HIV/AIDS and other civil liberties issues. Faith and Credit and the Relational Charac- sociate Justice, 51 Santa Clara L. Rev. 743 Full details are available on the Project’s ter of Legal Sex, 46 Harv. Civ. Rts. — Civ. (2011) (Notes significance of Justice - Ste website. Interested persons should submit Lib. L. Rev. 51 (Winter 2011). vens’ assignment of Romer and Lawrence a cover letter, resume, legal writing sample, Driver, Justin, The Consensus Constitution, to Justice Kennedy to write for the Court, three references, and a law school transcript 89 Tex. L. Rev. 755 (March 2011) (contests thus shaping the Court’s gay rights juris- by email to [email protected] — Reference the conventional wisdom that the Supreme prudence even though Stevens did not [LGT-14] in the subject line, or by surface Court doesn’t wait for a popular consensus write in those cases). mail to: Human Resources, ACLU Re: to form before marking out new constitu- Kaley, Regina N., Can Taxpayers Stand [LGBT-03], 125 Broad Street, 18th Floor, tional ground, using Loving v. Virginia and Discrimination? Lack of Standing and the NY NY 10014. Applications will be ac- Brown v. Board of Education as examples, Religious Freedom Restoration Act Permits cepted until the position is filled, which will and suggests that same-sex marriage liti- the Executive Branch to Fund Discrimina- 102 May 2011 LESBIAN/GAY LAW NOTES tion Within Religious Organizations, 49 J. Ritter, Michael J., Teaching Tolerance: A Meier, Benjamin Mason, and Alicia Catholic Legal Studies 195 (2010). Harvey Milk Day Would do a Student Body Ely Yamin, Right to Health Litigation and Lindgren, Yvonne F., Personal Autonomy: Good, 19 Tex. J. Women & L. 59 (Fall 2009). HIV/AIDS Policy, 39 L., Medicine & Eth- Towards a New Taxonomy for Privacy Law, Seehusen, Sonja, Same Sex Marriage: ics Special Supplement to Vol. 39:1, 81 31 Women’s Rts. L. Rep. 447 (Summer Does the Constitution or State Constitution (Spring 2011). 2010). Support Same-Sex Marriages?, 14 U. D.C. Little, Charles Thomas,Transsexuals and L. Rev. 133 (Spring 2011). Specially Noted: the Family Medical Leave Act, 24 J. Marshall Silhan, Caitlyn, The Present Case Does J. Computer & Info. L. 315 (Winter 2006). Involve Minors: An Overview of the Dis- C. Everett Koop, MD, ScD, The Early Days Luther, Robert, III, Marketplace of Ideas criminatory Effects of Romeo and Juliet Pro- of AIDS, As I Remember Them, 13 Annals of 2.0: Excluding Viewpoints to Include In- visions and Sentencing Practices on Lesbian, the Forum for Collaborate HIV Research dividuals, 38 Hastings Const. L.Q. 673 Gay, Bisexual and Transgender Youth, 20 L. No. 2 (March 29, 2011) (Dr. Koop, Sur- (Spring 2011) (considering scope of CLS & Sexuality 97 (2011). geon General during the Reagan Admin- v. Martinez). Smith, George P., II, and Gregory P. istration, provides a blunt, plain-spoken Maldonado, Solangel, Illegitimate Harm: Bailey, Regulating Morality Through the account of how the socially conservative Law, Stigma, and Discrimination Against Common Law and Exclusionary Zoning, 60 politics of the Reagan Administration Nonmarital Children, 63 Fla. L. Rev. 345 Cath. U. L. Rev. 403 (Winter 2011). stood in the way of an appropriate response (April 2011). Sohaili, Tina, Security Safe Schools: Using as the first signs of the HIV epidemic be- Maruri, Silpa, Hormone Therapy for -In Title IX Liability to Address Peer Harassment gan to surface. Fascinating reading, avail- mates: A Metonym for Transgender Rights, of Transgender Students, 20 L. & Sexual- able free from http://www.hivforum.org). 20 Cornell J.L. & Pub. Pol’y 807 (Spring ity 79 (National LGBT Bar Association 2011). Michael Greenberg Writing Competition EDITOR’S NOTE: Massaro, Toni M., Christian Legal So- winner). ciety v. Martinez: Six Frames, 38 Hastings Stirnitzke, Audrey C., Transsexuality, Const. L. Q. 569 (Spring 2011). Marriage, and the Myth of True Sex, 53 Ariz. All points of view expressed in Lesbian/ Miller, Emmalee M., Are You My Moth- L. Rev. 285 (2011). Gay Law Notes are those of identified er? Missouri Denies Custodial Rights to Walker, Anders, Shotguns, Weddings, and writers, and are not official positions of the Same-Sex Parent, 75 Missouri L. Rev. 1377 Lunch Counters: Why Cultural Frames Mat- Lesbian & Gay Law Association of Great- (Fall 2010). ter to Constitutional Law, 38 Fla. St. U. L. er New York or the LeGaL Foundation, Nackenoff, Carol, Book Review, Land- Rev. 345 (Winter 2011). Inc. All comments in Publications Noted marks, Portents, or Just Curves in the Road?, Williams, Ryan C., The Ninth Amend- are attributable to the Editor. Correspon- 45 Tulsa L. Rev. 659 (Summer 2010) (in- ment as a Rule of Construction, 111 Colum. dence pertinent to issues covered in Les- cludes comment on David A.J. Richards’ L. Rev. 498 (April 2011). bian/Gay Law Notes is welcome and will book on the Supreme Court’s sodomy be published subject to editing. Please ad- cases). Specially Noted: dress correspondence to the Editor or send Nice, Julie A., How Equality Constitutes via e-mail. Liberty: The Alignment of CLS v. Marti- Vol. 38, No. 3 (spring 2011) of the Hast- nez, 38 Hastings Const. L.Q. 631 (Spring ings Constitutional Law Quarterly contains 2011). several articles examining the tension Olson, Christine L., Transgender Foster between associational freedom and non- Youth: A Forced Identity, 19 Tex. J. Women discrimination arising from the Supreme & L. 25 (Fall 2009). Court’s ruling in Christian Legal Society Pearson, Kim H., Mimetic Reproduction v. Martinez, concerning a state univer- of Sexuality in Child Custody Decisions, 22 sity’s decision to deny legal recognition to Yale J. L. & Feminism 53 (2010). a student organization whose membership Perju, Vlad, Cosmopolitanism and Consti- rules exclude “unrepentant” homosexuals tutional Self-Government, 8 Int’l J. Const. and non-Christians. Individual articles are L. 326 (July 2010). noted above. Reeves, Edward J., and Lainie D. Deck- Symposium: Predators, Porn & the Law: er, Before ENDA: Sexual Orientation and America’s Children in the Internet Era, 61 Gender Identity Protections in the Workplace Syracuse L. Rev. No. 3 (2011). Under Federal Law, 20 L. & Sexuality 61 (2011). HIV/AIDS and Related Issues Ritter, Michael J., Quality Care for Queer Nursing Home Residents: The Prospect of Re- Houlihan, Annette, When “No” Means forming the Nursing Home Reform Act, 89 “Yes” and “Yes” Means Harm: HIV Risk, Tex. L. Rev. 999 (March 2011). Consent and Sadomasochism Case Law, 20 L. & Sexuality 31 (2011).