CHRONOLOGY
of major events affecting individual liberty, mid 1996 until present
For
state-by-state accounts of legislative and judicial issues for GLBT issues,
visit the Human Rights Campaign at the “Laws
& Legislation in Your State” link. I am planning to develop something
similar across all liberty issues (not just GLBT), cross related to arguments,
with a simple tabular display.
Oldcourt
gives some older Supreme Court rulings of considerable importance to our
discussions.
Stanford University
Law School
has a site giving the complete
litigation history of the military gay ban (even before "Don't Ask,
Don't Tell, Don't Pursue"). The most important rulings are shown on this file.
For litigation on many different issues that affect lesbians and gay men
(domestic partnership, HIV, ADA,
employment, custody, military) see Lambda Legal Defense and
Education Fund Issues Page.
For a thorough history of litigation regarding state sodomy laws in state
courts, refer to Dirk Selland's article in Tulane Univserity Law and Sexuality Review (hardcopy only;
see additional
bibliography).
The Washington Blade usually
maintains a very detailed discussion (by Lisa Keen) of the last twelve months'
Supreme Court cases from any point in time.
Early 1996 - A student teacher in Minnesota
is removed from student teaching after telling an Eighth Grade class, in
response to a student's question about his marital status, that he is gay. His
college does not place him in another school, so he cannot get a teacher's
license. He sues in 1997.
Feb 1997 - Tacoma, Washington
reporter transferred to copy-editing position because of "conflict of
interest" over her gay-activist outside-of-work political activities. A
state supreme court judge upheld the transfer. See DADT Chapter 5,
footnote 132.
May 1996 - Supreme Court stikes down Colorado
Amendment 2 in Romer v. Evans and
indicates "animus" can never justify disparate public policy impact
on gays or any other group.
May 1996 - Bob Donnan tries unsuccessfully to
introduce a bill requiring the services to ask sexual orientation.
Aug. 1996 - Congress passes Defense of Marriage Act restricting marriage to
opposite sex couples for purposes of federal laws.
Oct. 1996 - Supreme Court declines to hear appeal of Paul Thomasson after the Fourth Circuit turns down his attempt
to overturn "Don't ask, Don't Tell"
Feb. 1997 - Supreme Court declines to hear similar appeals from Dirk Selland and Rich Reichenberg
Spring 1997 - in North Carolina,
an ex-wife wins a lawsuit against her husband's mistress (but not her husband)
for alienation of affection. A good case for tort reform?
In Aug 2001 there would be an alienation of affections lawsuit by Billie
Jean Bonner against the male homosexual lover (himself married) of her husband.
Again, why isn’t the jilter presumed completely responsible for his own
acts?
June 1997 - Supreme Court strikes down Communications Decency Act
June 1997 - Supreme Court strikes down Religious Freedom Restoration Act
June 1997 - Supreme Court holds people do not have a "fundamental
right" to end their own lives
June 1997 - Barney Frank proposes Anti-Hypocrisy bill for military.
June 1997 - Oklahoma City police
confiscate videos of the award-winning 1979 film The Tin Drum both from
video stores and from customers who had rented the movie, after illegally
demanding lists of customers from a video store. One of these customers
happened to be an official in the Oklahoma ACLU. A lawsuit is in progress. The
film contains a scene with two children in bed without clothes on; religious
conservatives called this "child pornography." Actually, the 1997
file The Ice Storm contains a similar scene. This story was covered by
CBS "60 Minutes" on Jan.
4, 1998.
June 1997 - California voters
pass Prop. 209, which bans racial (and gender) preferences in
state contracts, hiring and university admissions.
July 1997 - On rehearing Able, Judge Eugene Nickerson (New
York) holds that the military DADT policy fails on
equal protection grounds because it punishes even lawful sexual acts for
homosexuals but not for heterosexuals. Justice Department appeals to the 2nd
Circuit.
Sept. 1997 - The Ninth Circuit turns down a challenge to the DADT policy by
Andrew Holmes and Richard Watson. The Court claims that, unlike the old policy,
the new one does allow rebuttal and the military regulation of sexual conduct
and of the presumption device is lawful. However, the servicemembers
involved appealed for an en-banc hearing.
Sept. 1997 - conservatives arrange for a referendum on same-sex marriage to
be held in Hawaii in 1998.
Oct. 1997 - Family of a 1993 murder-for-hire victim in Maryland
sues Paladin Press, publisher of Hit Man (and also sues the author), and
claims that the book provided a detailed "blueprint" for this
assassination-style murder. A federal judge declines to dismiss suit out of
hand. Seems like this book is of value to want to avoid being assassinated as
well as to commit crimes! (But not even that's the point!) . See
Cohen, Adam, "Murder by the Book," Time, Dec. 1, 1997.
Oct. 1997 - the 6th Circuit upholds a Cincinnati Charter
provision forbidding the City Council from passing any ordinances giving
special protections to homosexuals or bisexuals (despite Romer).
Oct. 1997 - Supreme Court agrees to hear a case deciding whether
federal laws prohibit same sex harassment.
Nov. 1997 - Supreme Court lets stand Prop, 209, but voters in Houston,
Texas turn down an
similar referendum, as business leaders claim mild preferences are good for
business and for the image of the city. In New Jersey,
a civil rights group associated with the NAACP settles with a teacher laid off
when an African-American teacher had been retained instead due to
"preference." The school district had said it needed to promote
diversity in role models for students; but the African-American teacher may
have been slightly better qualified and the district could very well have said
nothing!
Nov. 1997 - A law school in Minnesota
agrees to allow military recruiters on campus, in view of the threat of loss of
Dept. of Education funds to provide financial aid for needy students, under the
Solomon Amendment to a DOD appropriation bill. This provision allows DOD to
regulate how other agencies distribute funds! A lawsuit to challenge the
Solomon Amendment is proposed.
Dec. 1997 - Time runs a story about community service as a mandatory
graduation requirement in Maryland
public high schools. (Cloud, John, "Involuntary
Volunteers," Time, Dec. 1, 1997).
Dec. 1997 - New Jersey agrees
to allow gay couples to adopt "jointly."
Dec. 1997 - ACLU plans to challenge Maryland's
sodomy law in state court. Now, there are six states with homosexual-only
sodomy laws: Maryland, Arkansas,
Missouri, Kansas,
Oklahoma and Texas.
Dec. 1997 - An Arizona legislator proposes a bill allowing only
legally married persons to care for foster children.
Dec. 1997 - ACLU attorneys plan to challenge Maryland
sodomy law in state court, and possibly reopen Hardwick in federal
court.
1998: In the Oncale v. Sundowner Offshore Services decision, the Supreme Court held
that employees who suffer sexual harassment at the hands of other employees or
supervisors of the same sex can sue for discrimination under Title VII of the Civil Rights Act of 1964.
Jan. 1998 - In California a law goes into effect banning smoking even
in bars (even gay bars!) Remember, in the 1980's they closed the baths in San
Francisco (and everywhere else).
Jan. 1998 - Supreme Court refuses to hear case of Robin Shahar,
and lets stand a lower court ruling in which her job
offer loss is basically linked to Hardwick.
Jan. 1998 - The Texas cattle ranchers association brings a libel suit
against Oprah Winfrey for remarks on her program ("Mad Cow Disease will
make AIDS look like the common cold") which allegedly cause beef prices to
fall in 1996, harming small ranchers. Texas
and some other states have "food defamation laws." Suit starts in Amarillo,
Texas in Jan. 1998. Personally, I think
Oprah is covered by the "opinion rule." The jury ruled in Winfrey's
favor on Feb. 27, 1998.
Jan. 1998 - A 3-judge state appellate panel in Missouri
rules that homosexual orientation is not a bar to retaining custody of children
after divorce, but that of course a person's overall conduct and character can
be considered.
Jan. 26, 1998
A federal judge in Washington,
D.C. issues a preliminary injunction
barring the Navy from discharging Navy seaman T. McVeigh after the Navy
illegally obtained identification of his online America Online profile
identifying him as "gay." It appears that the DOD
"guidelines" policy which allows discharge of personnel even when
information is obtained illegally (because the discharges are administrative
and have few or now due process protections) could be found unconstitutional.
Jan. 1998 - a lawsuit is filed in Arkansas
state court to overturn its homosexual-only sodomy law.
Feb. 1998 - a 3 judge panel in the 6th Circuit allows Cincinnati's
Initiative 3 referendum to stand. It argues that the Initiative simply denies
gays "special rights" as a class, and that is narrower than Colorado's
Amendment 2. The en banc cirucit refuses to hear the
case.
Feb. 1998 - Voters in Maine
repeal in a referendum a state "gay rights" law.
Feb. 28, 1998.
- A state judge in Alaska rules
that the State of Alaska must use
"strict scrutiny" to defend its law denying recognition to same-sex
marriage. The judge refused to dismiss the suit aummarily.
The judge said that (Hardwick notwithstanding) the choice of a long-term
intimate partner and even a marriage partner may be a "fundamental
right."
March 2, 1998.
A New Jersey court rules that the
Boy Scouts are a "public accommodation" and therefore must, according
to state law, refrain from, discrimination based merely on sexual orientation.
News accounts have emphasized that the Boy Scouts were set up by congressional
charter in 1916, and still enjoy the support of many public schools and of
police and fire departments. The extent to which government charters and tax
subsidies or other indirect assistance makes a private association a
"public accommodation" remains controversial, however.
March 5, 1998.
The Supreme Court holds that same-sex "sexual harassment" may violate
the 1964 federal Civil Rights act when the harassment creates a hostile work
environment; it does not have to be motivated by sexual desire.
March, 1998. The House of Representatives Judiciary Committee sends to the
House a proposed Religious Freedom constitutional amendment (Istook) that would
permit prayer in public schools and sometimes the use of public money for
religious activities. Unbelievers would be told they could leave the room!
March, 1998: The California Supreme Court rules that the Boy Scouts are not
a public or commercial organization covered by state anti-discrimination laws and
may exclude members for refusal to affirm belief in God or for apparent
homosexuality. My take ism the Boy Scouts will turn around on homosexuality if
the military ever does.
April 2, 1998.
The 2nd Circuit (New York)
hears oral arguments in the Able lawsuit
challenging the military "Don't ask, Don't Tell." Justices apparently
indicated that military rules protecting the "privacy" of
heterosexual soldiers may be "rational" (especially with respect to
"unit cohesion"). But did they understand the difference between real
prejudice and simply proper decorum in intimate circumstances?
Early 1998. Massachusetts
passes a law allowing single-sex health clubs to be exempt from civil rights
laws prohibiting gender discrimination.
April, 1998: Congress adopts a non-binding "sense of Congress"
resolution recognizing the importance of stay-at-home parents and the need to
consider them in public policy.
April, 1998: Students sue the University
of Minnesota over the use of their
student fees to support campus gay groups against their will. This seems indeed
to be a free-speech issue. As long as we have publicly funded education, we
need to allow parents and students to opt out of curricula that offend them. An
earlier Supreme Court ruling had denied a suit prohibiting a public university
from offering religious activities but had suggested students should have an
out.
April, 1998: A House of Delegates committee for Oklahoma
votes out a bill (and amendment to a sex-offender bill) prohibiting the
employment of "known homosexuals" in any Oklahoma
public school. This would include both teaching and support positions. In fact,
private contractors may not bring "known homosexuals" of their own
employ onto school property. Furthermore, the state would not be allowed to
enter into contract with any private firm which offers domestic partnership
benefits. This all sounds like a "Do Ask, Don't Tell" law. The
definition of "known homosexual" would probably come from the 1993
law for the military, the only definition in legal statute. Such a law would be
easier to strike down under Romer's equal protection
analysis than the military ban, because it would be hard for the state to
separate any conceivable rationalization for such a law from legal
"animus." See the April 15 Gayly
Oklahoman, including discussion of an earlier "Helms" bill 20
years ago.
April, 1998: An appellate court in Kansas
upholds the state sodomy law. A superior court judge in Rhode
Island strikes down the RI sodomy law.
May, 1998: A gifted high school student has been suspended from a high
school (or maybe middle school) in California
for submitting a short story on a student who uses weapons to start a school
riot, as a completion of a writing assignment in English class. CNN reports
that the story was very well written from a literary point of view and that it
did NOT make any threats. Yet the school system interpreted it as
"indirectly" as making a terrorist threat, merely for portarying the subject of teens carrying weapons. The boy's
parents are preparing to sue the school district. As a writer myself, you can
imagine how I feel about hearing this. What is this, something like suing
Paladin Press? What next? -- Bill
May, 1998: A federal court in Ohio
orders a school district to reinstate a sixth grade teacher whose contract it
would not renew because the school district believed he was gay.
May, 1998: The New York State Supreme Court rules that falsely calling
someone homosexual in writing is automatically defamatory and is "libel
per se."
May, 1998: President Clinton issues an Executive Order protecting all
federal workers not under the UCMJ from discrimination on the basis of sexual
orientation; but the Order does not create any enforcement rights (such as
appeal to the EEOC) , which would require legislation by Congress (such as
ENDA).
May 26, 1998.
ABC News airs John Stossel's
"Sex, Drugs and Consenting Adults." The arrest of author Peter
McWilliams and seizure of his computer and other assets for growing marijuana
for his own medical use is covered.
May, 1998: There are reports that a school district suspends two students
for "breach of loyalty" for wearing Pepsi-Cola shirts to school. The
school had signed an exclusive contract with Coca-Cola. In a similar case, the University
of Wisconsin had signed an
agreement with Reebok which actually barred faculty and students from publicly
criticizing Reebok's shoes. (Morris: St. Paul Pioneer
Press, June 2, 1998, page 11a).
May 20, 1998.
The US Securities and Exchange Commission overturns a 1992 staff ruling that
had allowed Cracker Barrell Old Country Store to
ignore a stockholder mandate to end its discriminatory policies against
homosexual employees. The ruling paves a way for constructive shareholder activism
(and this does ratify property rights.)
June 12, 1998:
The Navy announces it has agreed to allow Timoth
McVeigh (#2) retire with full benefits. McVeigh also announces that he and AOL
settled out of court on his invasion of privacy litigation.
June 22, 1998:
The California Supreme Court rules that the state national
guard cannot discharge a member merely for stating he or she is gay.
However, this is likely to have little practical effect, since the NG can be
federalized which brings in the federal DADT policy, which is not affected.
June 25, 1998.
In Bragdon v. Abbot, the Supreme Court
rules that HIV infection (even if asymptomatic and without T-cell loss) is in
itself a disability, at least partially because if can interfere with
reproduction which legally a major life activity. Whether a dentist has a bona
fide excuse for non-treatment because of fear of infection is remanded for
further review.
June 25, 1998.
The Supreme Court rules the line-item veto (the one part of the Republican
"Contract with America"
that passes) be an unconstitutional abridgement of separation of powers. The
Court invited the country to debate whether the Constitution should be amended
to allow a change in the balance of powers. This has no immediate consequences
since the line item veto had applied only to appropriation items. But a
stronger line-item law could have allowed President Clinton to veto the
enclosure on homosexuality in the 1993 Defense Authorization Act, and might
have allowed him to be much more aggressive in lifting the military gay ban.
June 25, 1998.
ABC "20/20" covers the Supreme
Court decision (Spring 98) that sexual harassment can be charged as a tort when
it occurs between members of the same sex, even if the perpetrator is not
"gay." One case concerned an off-shore oil-rig in which the men lived
and worked together (without female access) for weeks at a time, somewhat as if
they were in the Navy. The attitude had been, if somebody gets picked on, he
didn't belong on the rig. Male "sexual harassment" may be more about
dominance than sex, yet we all know that possession and submission can
eventually become sexual turn-ons.
June 1998: Forfeitures aimed at punishing someone are unconstitutional fines
if they are ``grossly disproportional to the gravity of the offense,'' (from an
AP report), according to the 8th Amendment (Cruel and Unusual Pubishments). The case involved a civil forfeiture of a
person trying to leave the country. This was seen as a modest reinforcement of
property rights; Clarence Thomas wrote the majority opinion.
June 1998. The Supreme Court upholds the Military Decency Act, which would
ban certain pornography from PX's on military bases.
But this would tend to reinforce the notion of "deference to the
military."
July 1, 1998.
In Holmes v. California Army National Guard, state judge David Garcia
rules that the DADTDP illegally and irrationally discriminates against gay men
and lesbians regardless of conduct. The ruling would allow Andrew Holmes to
serve in the California Guard in any non-federal exercise.
September 23, 1998:
The 2nd Circuit Court of Appeals in New York
upholds the "Don't Ask Don't Tell" policy, and overturns a previous
ruling by Eugene Nickerson in Able. The Court holds that it is not
empowered to question the judgement of Congress in
running the military, and that the equal protection violation claims by Able
are not supported by case law, inasmuch as sexual orientation is not recognized
as a suspect class. See http://www.law.pace.edu/lawlib/legal/us-legal/judiciary/second-circuit/test3/97-6205.opn.html.
October 1998 - A trial court (state) judge strikes down the Maryland
sodomy law, at least the definition of sodomy, using
equal protection arguments. There is debate over just what this decision
accomplishes. Dirk Selland is having a discussion of
the Maryland sodomy law published
in the Tulane Law Review in 1999.
October 1998 - Congress passes as the president signs into law the Child Online Protection Act.
A colation of plaintiffs,
including DOASKDOTELL, immediately files suit.
November 1998 - Voters in Hawaii rafiy a state constitutional amendment giving the
legislature authority to limit legal recognition of marriage to opposite-sex
couples.
October 1999 - Supreme Court lets stand a demotion of a teacher, Boring,
in North Carolina who was demoted after airing a play at school with a lesbian
character, without permission from the school.
October 1998 - Supreme Court refused to hear appeal from Navy Lt. Tracy
Thorne, on "Don't Ask, Don't Tell".
November 1998 - Two adult men are arrested in the privacy of their own home
for violating the Texas
"homosexual-only" sodomy statute, when police had come to investigate
a possible burglary. This will probably lead to a rehearing (properly this
time) before the Texas Supreme Court.
November 1998 - The Georgia state supreme court
strikes down the state's sodomy law, which had been upheld by the Supreme Court
in 1986 in Bowers v. Hardwick.
November 1998 - The Supreme Court refused to hear Merino v. San Diego,
in which the California Supreme Court had turned down an appeal of a gay
police officer to particpate in the Police
Department's Boy Scout program called "Explorer Post." This is
important because there apparently was some publicly funded support for this
program. But see Dale v. BSA, below (New Jersey).
December 1998 - A coalition of "conservative" plaintiffs files
suit against the city of Boston,
Ma. for offering domestic partnership benefits to
municipal employees. Plaintiffs claim that the city has created a "common
law marriage" in violation of an institution that is supposed to be a
privilege enjoyed only by man-woman couples.
December 1998 - A federal court rules that the Navy had violated the
protections "Don't Ask" and "Don't Puruse"
in discharging Jim Turner. This is an important step in forcing the military to
at least observe the procedural protections in the administrative regulations
implementing DADT.
December 1998 - Supreme Court lets stand, in Minnesota v. Carter, a
ruling that police may peer between blinds if they believe (under
"probable cause") that illegal activity is going on. It is not
expected that this ruling would lead to enforcement attempts of state sodomy
laws.
January 11, 1999.
The Supreme Court lets stand (without comment) a 3-person Ninth Circuit ruling
that the DADTDP policy is constitutional because of military deference and
because the presumption device is not inherently unconstitutional. Therefore,
Andrew Holmes and Richard Watson do not get their cases heard before the
Supreme Court (they would probably need at least one appellate "victory"
before the Supreme Court would take the case).
February 1, 1999
- Federal Judge Lowell Reed grants a Preliminary Injunction against the
enforcement of the Child Online Protection Act (COPA).
February 2, 1999
- A jury award members of Planned Parenthood and various abortion providers
over $100 million in a judgment against the operators of the "Nuremberg
Trials" wen site, which had listed the names,
addresses, and even family members of abortion providers. This was not libel
(to the extent that the list was true) but it was arguably an invasion of
privacy tort (certainly for listing addresses and children's names, for we
could debate whether abortion providers are somehow "limited public
figures.") But the plaintiffs maintained that the intention of the site
was to target abortion providers for violence, even though the site itself did
not advocate violence, all because of the prevailing atmosphere of violence.
This contention sounds like a dangerous breech of free speech.
February 3, 1999
- A coalition in Vermont
announces a lawsuit challenging the Solomon Amendment (military recruiters on
campuses that have non-discrimination policies protecting gay people.)
February 3, 1999
- A Washington DC government official is asked to resign after using the word
"niggardly" (meaning "parsimonious") in a memo. The mayor
later relents. Yet some people complain that the official, while technically
correct in his language usage, was "insensitive." What will they
teach in English classes now?
April, 1999: A Texas state
district judge (Keith Nelson, 78th Judicial District) rules that a
lesbian mother, as part of a visitation arrangement after divorce, may not take
her child to the Cathedral of Hope Metropolitan Community Church of Dallas. The
state of Texas is claiming that MCC
(a denomination that emphasizes ministry to gays and lesbians) is not a
legitimate religious organization but rather consists of "queers playing
church." The judge even listed "mainstream" denominations that
would have been acceptable. Separation of church and state,
anyone??
April, 1999: New Hampshire
repeals its law prohibiting adoptions by homosexuals (the "must ask, must
tell" policy)
April, 1999: In U.S. v. Emerson, a federal judge in Texas
strikes down a 1994 federal law denying guns to any person under a restraining
order regarding domestic abuse against a spouse. (Richard Willig, USA Today, Aug. 27, 1999). This judge regarded the 2nd Amendment as
guaranteeing an individual right, although most legal
scholars view it is an intermediate, "community" right. The
government appealed in August.
April, 1999: In Apollo-Media v. U.S., the Supreme Court let stand a
Ninth Circuit ruling that upholds a portion of the 1996 Communications Decency
Act prohibiting the sending of indecent or prurient emails, even when
anonymous. (This was a rather minor provision.)
May, 1999: A state court in Michigan
awards a $25 million judgment against the producers of the Time-Warner
"Jenny Jones Show" for setting up a situation where a gay man
confessed his crush on a straight man, and the straight man subsequently went
out and shot the gay man. The jury held that the show was guilty of negligence
(failing to consider the mental instability of the killer) and for
"setting up" the victims. This is an important First Amendment case.
Time-Warner will appeal.
May 24, 1999:
In Davis v. Monroe County Board of Education, the Supreme Court rules
that school districts can be found to have violated federal civil rights laws
if they willfully disregard student-student sexual harassment (including
anti-gay harassment).
May 24, 1999:
Paladin Press (Rice v.
Paladin Enterprises, Inc.) settles the lawsuit against it for Hit Man
out of court. It agrees to take the book out of print and pays an undisclosed
amount without admitting wrongdoing. Apparently, an appeals court was willing
to let this trial go forward on the theory (wrong, I think) that the book was
nothing more than a recipe for crime. (It's also indirectly a recipe for
self-defense).
June 3, 1999:
The 7th Circuit (Chicago) appeals that the Americans for
Disabilities Act does not prevent health insurance companies (Mutual of Omaha)
from applying caps on coverage for HIV disease, which can result in denial of
life-extending new drug therapies.
June 1999: President Clinton makes a "recess" appointment of
openly gay James Hormel as Ambassador to Luxembourg,
and "those Republicans" protest, as they maintain that Hormel (with
his support of the Sisters of Perpetual Indulgence) is an
"anti-Catholic" bigot.
June 10, 1999
The Internal Revenue Service revokes the tax-exempt (religious organization)
status from the Christian Coalition, because it supports specific candidates in
elections. The C.C. now has put individual churches in the position that they
could lose tax-exempt status by accepting Christian Coalition voting guides.
(501C3's can support political ideas but not specific candidates or parties).
June 14, 1999
The Supreme Court rules that privately owned casinos have the same right to
advertise (under the First Amendment) on the public airways as do Indian tribes
acting on soverign lands or as states do with
lotteries (National Association of Broadcasters, Edward Fritts). The Clinton
administration had wanted the ban to protect "compulsive gamblers"
from themselves. The ruling may affect bans on tobacco advertising.
June 18, 1999:
A federal jury in Nassau County
(Long Island) New York
finds in favor of a gay police officer (Quinn) in a sexual harassment case
against other police officers who had (out of "tradition") harassed
him military-style for being gay.
June 1999: The Supreme Court holds that the Americans for Disabilities Act
does not apply for medical problems which are (within reason) remediable. May
an employer fire someone with insulin-dependent diabetes or asymptomatic HIV
infection (controlled with protease inhibitors)to
reduce the risk to health insurance claims?
June 24, 1999:
A Florida appeals court that a lesbian partner (Penny Kazmierazak)
is not entitled to visitation rights after breaking off a relationship with the
biological mother, despite having participated in raising the child much as a
parent.
June 24, 1999:
The U.S. House of Representatives pass a constitutional amendment that would
enable Congress to criminally prohibit flag-burning.
July 9, 1999.
See excerpt from Huff
v. Alabama: at least some state courts are waking up to the abuses of civil
asset forfeiture.
July 29, 1999.
Federal judge Arthur Tarnov overturns a Michigan
version of COPA (Michigan Public Act 33, due to take effect August 1, 1999). The law made it
illegal to display sexually explicit materials on any internet site where a
minor could find it. Tarnov ruled that the law would
dumb down internet speech to language suitable for children.
July 1999. An Indiana state
appeals court judge (Patricia Riley) rules that sexual orientation by itself
may not be ground for denial of custody. In this case, a lesbian mother's
custody had been challenged by her ex-husband.
July 1999: The 9th Circuit holds that ISS Starship v. Epix must go to trial on merits. Epix (a manufacture
of imaging software and hardware) has tried to take the "epix" domain name away from ISS, a theater group,
claiming trademark infringement even though Epix had
never created an Internet domain by that name. This is a "David v.
Goliath" and "who owns the press" case.
August 3, 1999.
In James Dale v. Boy Scouts of America,
and Monmouth Council, Boy Scouts of America,
the New Jersey state supreme court rules that the Boy Scouts cannot exclude James
Dale simply because of his sexual orientation. This overturns an appellate
court ruling. The opinions were written by Justices Poritz
and Handler. The ruling holds that the BSA has violated New
Jersey law regarding discrimination in public accomodations. The BSA is (according to the court) so large
and relatively non-selective that it cannot hold itself to be a "private
club." The amount of "public subsidy" or public charter of the
BSA (which varies from location to location and often does enter libertarian
arguments) was found to contribute to the finding that BSA is a public
accommodation (but apparently there was no finding that government
discrimination against gays is by itself always illegal according to state
law). See excerpts
from the opinion or Rutgers
University for the full text.
September 1999 - A Missouri appeals court lets stand a lower court ruling
that consent is a defense in a (gross misdeameanor)
prosecution for "sexual misconduct."
September 1999 - A California appeals court rules that a crime victim's
family may sue a weapon's manufacturer if the weapon seemed excessive in what
is reasonably needed for self-defense.
September 24, 1999:
In Tasini v. The New York Times, the 2nd
Circuit holds that it is an infringement of federal copyright law for a
publisher to post electronically or otherwise reuse a freelance writer’s work
(or any writer’s work) without permission, unless permission had been granted
when the rights to the work were originally bought according to contract
provision. The Supreme Court will hear this case in 2001. For details, visit
the National Writers’ Union.
October 14, 1999
-- Federal Judge Bruce Jenkins rules that the Salt Lake City school district
can ban gay student extracurricular clubs or and other clubs without an
"academic purpose" without violating the First Amendment, as long as
the school does not prohibit discussion of gay issues in appropriate academic
settings. (In November the Supreme Court will hear arguments in a suit against
the University of Wisconsin
for charging mandatory student fees for activities that some students find
objectionable.)
November 3, 1999
-- In the first ruling of its kind, a federal appeals court has rejected a
state law banning Internet speech deemed "harmful to minors," saying
that such laws censor valuable speech for adults.
The American Civil Liberties Union, which had challenged New Mexico's law
making it a crime to disseminate online expression that involves
"nudity" or "sexual conduct," welcomed the ruling, issued
24 hours before a court battle tomorrow against a similar federal law.
The state had argued that its law banned only online material considered
"harmful to minors." But as the appeals court pointed out, that
argument "overlook[s] the basic point that what may be ‘patently
offensive...for minors'...may very well have social
importance and not be patently offensive for adults." Indeed, the court
noted, "plaintiffs' speech includes discussions of women's health and
interests, literary works and fine art, gay and lesbian issues, prison rapes,
and censorship and civil liberties issues." (quote
from aclu site)
click on "cyber liberties".
The Tenth Circuit decision, issued late Tuesday, is online at http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=10th&navby=case&no=982199.
Dec. 1999: In a long awaited-ruling by the Hawai`i
Supreme Court in Baehr v.Anderson
(formerly Baehr v. Miike,
formerly Baehr v. Lewin),
the denial of a same-sex marriage license was held to be a "moot
point," because of a 1998 state constitutional amendment defining formal
marriage as referring to opposite genders only. However, the court did not
overturn earlier rulings (back to 1993) that sexual orientation discrimination
was fundamentally similar to gender and ethnicity discrimination and that for
practical purposes gay people must have the same rights at law, including
comparable rights for "domestic partnerships."
URL: http://www.state.hi.us/jud or http://www.doaskdotell.com/content/baehr.htm
December 1999: In Ellsworth v. Houston Independent School District,
a federal judge (Gilmore) rules that an HIV+ teaching job applicant was
illegally discriminated against according to the Americans for Disabilities
Act. See http://www.doaskdotell.com/content/houston.htm
December 1999: The Supreme Court refuses to intervene when the State of Kentucky
investigates a "country club" allegedly excluding African-Americans
and still applying for tax-exempt status. (This could related
to the Dale-BSA case above.)
December 1999: The Supreme Court lets stand a Vermont Supreme Court ruling
that the state may not provide vouchers for parents to send their kids to a
Catholic school.
December 20 1999:
In Baker v. Vermont, the Vermont
state Supreme Court denies actual same-sex marriage applications but
"orders" the state legislature to provide equal benefits in a
domestic partnership bill for same-sex couples as provided heterosexual couples
in marriage. This appears to be similar in tone to informal provisions in the
Hawaii Baehr ruling.
Text of ruling (text-file, 72 pages) is at: http://dol.state.vt.us/gopher_root3/supct/current/98-032.op
December 1999: In Virginia, a state appeals court will reveal the
constitutionality of the state's "Crimes Against
Nature" Law.
1999: The 9th Circuit, in United States v. Oakland Cannabis
Buyers’ Co-operative, ruled that medical necessity was an acceptable
defense against federal drug distribution charges. The Supreme Court will hear this case in
2001. The U.S.
had sought an injunction against the distribution of medical marijuana.
January, 2000: In San Antonio, federal Judge Ed Prado refuses to strike down
a high school graduation test requirement upon the theory that the test results
would show a disparate impact against racial minorities. "This court has no authority to tell the
state of Texas what a well-edicated high school graduate should demonstrably know at
the end of 12 years of education."
January 2000: In Kimel v. Florida Board
of Regents, the Supreme Court rules that the Age Discrimination in
Employment Act (ADEA) cannot be applied to state governments as employers
because age discrimination has never been held to violate the 14th
Amendment and age has never been a "protected class" in federal civil
rights laws. This could have a potential
effect on future federal ENDA-type laws.
January 2000: The Supreme Court agrees to review Dale v. Boy Scouts of
America.
February 2000: Judge William Bedsworth of the California
appeals court in Santa Ana (as part
of a 3-judge panel) rules that a person cannot be pre-emptorily
struck from a jury during voir dire merely because of
sexual orientation. (Article in San Francisco Chronicle, 2/1/2000, by
Harriet Chiang).
March 2000: From contributions to Lesbian and Gay New York, Issue 128, March 20, 2000, by Arthur
S. Leonard. http://www.lgny.com/
- A
federal magistrate (Hubel) ruled that a couple in Christmas Valley, Oregon had
committed invasion of privacy, intentional infliction of emotional distress,
and violation of Oregon’s ethnic intimidation statute in a letter-writing
campaign that forced a lesbian couple (Anne Simpson and June Swanson) to close
their restaurant business and leave town. Leonard has written about libel and
calling someone “gay”.
- The
5th Circuit Court of Appeals (Judge E. Grady Jolly) in Houston
ruled that Time Insurance Company did not violate either Texas
law or the federal Americans for Disabilities Act when it placed a “low-cap on
coverage for HIV-related claims.” The plaintiff was Dr. Michael Jay MacNeil.
- The
9th Circuit Court of Appeals in San Francisco
ruled “that the federal Gender-Motivated Violence Act (GMVA) and Title VII
of the Civil Rights Act of 1964 apply to violence and discrimination against
transgendered persons.”
March 14, 2000:
A state circuit judge (Ralph Smith, Jr.) in Florida
has ruled that the “nations’s first statewide school
voucher program,” which had put 53 low-income children in private schools,
unconstitutional. Even so, in Florida,
only students attending schools that fail to meet state standards may get funds
to attend private schools. (USA
Today, March 15, 2000).
March 21, 2000:
The Supreme Court ruled, 5-4, that federal law does not give the Food and Drug
Administration a warrant to regulate tobacco as an addictive drug. Congress still might have the legislative
authority to do so (although a libertarian would say that regulating addictive
drugs is hardly among Congress’s delegated powers; the 18th
Amendment was repealed by the 21st).
March 22, 2000:
The Supreme Court ruled unanimously that the University
of Wisconsin may used
student fees to fund student groups with varying viewpoints, even though some
students may be “offended” by those viewpoints. This reverses an earlier
opinion by the 7th Circuit, which had relied on a ruling that labor
unions may not collect mandatory dues for political purposes.
March 23, 2000:
A federal judge rules on a 20-year old class action lawsuit against the US
Information Agency (now part of the State Department) for discrimination
against female employees, and orders a payment of 508 million to 1100 female
plaintiffs (including Jahanara Hasan).
This is a case of government discrimination.
April 3, 2000:
Federal judge Thomas Pensfield Jackson rules that
Microsoft has consistently violated anti-trust law. The ruling is significant
for free speech because a major allegation was that Microsoft gave away its
browser (Internet Explorer) for “free” by bundling it with its operating
systems, competing “unfairly” with other software companies that did not have
operating systems. (Think about how writers who publish while employed
“compete” with writers who must do it for a living.)
May 22, 2000:
The Supreme Court, by 5-4, overturns another section of the Telecommunications Act
of 1996 (which had included the Communications Decency Act, overturned in
1997), this one prohibiting cable operators from
showing “adult programming” (pornography??) between 6 AM and 10 PM,
because of the signal bleed problem. The
majority ruled that this was not the least restrictive means to protect minors,
considering the First Amendment rights of cable operators, which were not
negated by their commercial purposes. This could set an important precedent for
COPA.
May 31, 2000.
In Price v. Price, Westlaw 704596, the Tennessee Court of Appeals that a
gay dad may not automatically lose joint custody rights when the husband, after
separation, moved away from his wife.
June 5, 2000.
In T.B. v. L.R.M. (Westlaw 714409) the en banc Superior Court of Pennsylvania
granted in loco parentis rights to a lesbian parent who had participated with a
partner in planning the birth of her child by artificial insemination.
June 8, 2000.
The Texas 14th Court
of Appeals declared the state’s homosexual-only sodomy law (originally
challenged by Baker v. Wade in 1982) unconstitutional in Lawrence
& Garner v. State of Texas (overturning a conviction from Houston).
The court held that it violated the Texas Equal Rights Amendment because it
applied to homosexuals only, and it referred to the Loving v. Virginia
miscegenation case. The 2-1 majority
opinion was written by Justice John Anderson.
June 2000: A (state) jury in Columbus, Ohio awards Amy Mier
and Christine Roush $65000 for their wrongful
discharge from the Certified Oil Company, after a judge Daniel Hogan held that
wrongful discharge for sexual orientation discrimination could be found to
violate “public policy” even without an anti-discrimination statute.
June 13, 2000:
A federal appeals court in Memphis ruled that the Baptist Memorial Health Care
Corp. did not act illegally when it (in 1996) fired a lesbian student services
specialist, Glynda L. Hall, at the College of Health
Sciences, after she “came out” in explaining her position as a lay minister at
a non-denomonational church welcoming gays. She had been allowed to apply for a different
(non-people-oriented) position. Hall’s
attorney, Clyde Keenan, had argued that the College’s receipt of federal funds
meant that it could not discriminate (as in a similar case against the Baptist
Home for Children in Kentucky). But the court wrote, “the
statutory exemptions for religious discrimination claims under Title VII
cannot be waived by either party… The exemptions reflect a decision by Congress
that religious organizations have a constitutional right to be free from
government intervention.”
June 19, 2000:
The Supreme Court rules, 6-3, that a Texas
school district may not allow a student representative to deliver a public
prayer before high school football games.
From Justice Paul Stevens: “Nothing in the Constitution … prohibits any
public school student from voluntarily praying at any time before, during or
after the school day. But the religious liberty protected by the Constitution
is abridged when the state affirmatively sponsors the particular religious
practice of prayer.”
June 19, 2000:
The California Supreme Court rules that insurers may not deny claims of
policyholders who develop AIDS a number of years after purchasing
insurance. The specific case is Galanty v. the Paul Revere Life Insurance Company,
about a disability claim. (From Lambda Legal Defense and
Education Fund).
June 23, 2000.
The Third Circuit Court of Appeals in Philadelphia uphold’s Judge Reed’s Preliminary Injunction against
the Child Online Protection Act (COPA). The opinion stresses the idea that the
topology of the Internet does not allow a speaker to direct his output to
specific communities (for the community standards doctrine) and that Internet speakers
do not have the same accountability for the pervasiveness of their speech as do
broadcasters.
Text is at http://pacer.ca3.uscourts.gov/recentop/day/991324.txt or at http://www.doaskdotell.com/content/copaapel.htm
June 26, 2000.
The Supreme Court upholds the Miranda rule (that suspects have to be read their
rights before they are questioned), and that it may not be overturned by
Congress.
June 28, 2000.
The Supreme Court rules, 5-4, that the Boy Scouts, as an essentially private
organization, are expressing their constitutionally protected freedom of
expressive association in excluding James Dale, in James Dale v. Boy Scouts of
America. The New Jersey Supreme Court
opinion is vacated. For syllabus, see http://www.doaskdotell.com/content/bsaopn.htm
June 28, 2000.
The Supreme Court strikes down one state law including gays as a protected
category under hate crimes laws on procedural grounds.
July 7, 2000.
The Louisiana Supreme Court upholds the state’s sodomy law by a 5-2 vote.
Justice Chet Taylor wrote: “Simply put, commission of what the Legislature
determines as an immoral act, even if consensual and private, is an injury against
society itself.” Really? Taylor
went on to comment that state constitutional guarantees or privacy and liberty
did not matter here. The web reference is http://www.lasc.org/news/2000/2000-48.htm.
July 13, 2000.
In Bridgeport, Conn. United
States District Judge Warren
Eginton ordered that funds from the Connecticut State
Employee Charitable Campaign ("the Campaign") intended for the Boy
Scouts of America ("BSA") be continued held in an escrow account. The
BSA had sued, trying to invalidate a policy by the state to collect charitable
deductions from state employees for any organization with discriminatory
practices. From press release by Gay & Lesbian Advocates & Defenders,
294 Washington Street, Suite 740,
Boston, MA
02139http://www.glad.org
Aug 29, 2000.
In U.S. v. Oakland Cannabis Buyers' Cooperative, A-145. the Supreme Court voted 7-1 to honor a Clinton
Administration request to overrule lower federal court (and 9th
Circuit) rulings to allow growth and distribution for medical marijuana, under
California Proposition 215. The
government claimed that the California
proposition encouraged disrespect of federal law and of an overriding public
interest in eliminating illicit drugs, and that marijuana had no legitimate
medical purposes. Here we have federal
government overriding the “democratic” prerogatives of the people of a state to
make public policy more in keeping with individual liberty.
August 2000.
In Thomas v. Anchorage, the Ninth Circuit rules that landlords suing to
overturn a housing discrimination law regarding renting to unmarried couples on
religious grounds have no standing to sue: "no prospective tenant has ever
complained to the landlords, let alone filed a complaint against
them." (The Washington
Blade, September 1, 2000).
August 2000. The 2nd Circuit (federal) rules that the 1964 Civil
Rights Act may protect against discrimination based on non-conformity gender
stereotypes, in a case brought by postal carrier Dwayne Simonton. The opinion, written by Judge John M. Walker,
said that his ruling is not tantamount to sexual orientation discrimination
protection itself since many or most homosexuals conform to their externally
expected “stereotypes” in their publicly apparent manners. From “Courts Open
Alternate Route to Extend Employment-Bias Laws to
Homosexuals,” by Jesse Bravin, Staff Reported, The
Wall Street Journal, September
22, 2000.
August 10, 2000.
In the case of Jill Bacharach, a New Jersey
superior court (Judge Anthony J. Iuliani of State
Superior Court) refuses to allow a name change to allow the partner’s named to
be added in hyphenation. “Legal experts and lesbian and gay rights advocates
said the Aug. 10 ruling, by Judge Anthony J. Iuliani
of State Superior Court here, was out of step with New
Jersey law, which allows name changes for virtually
any reason other than to perpetrate fraud or avoid criminal prosecution or
creditors.” And the decision was probably the first in the United
States denying a name change to a same-sex
partner. (NY Times, Sept.
22, 2000.
September 2000. The 4th
(state) circuit in Texas allows
Robin Weeks to marry another woman because she is chromosomally a male. The ruling rides on Little v. Prange, which held held than
chromosomes determine whether a couple has a right to have their marriage
recognized as a legal opposite-sex marriage in Texas.
The biological complexity of many human chromosomal anomalies makes it likely
that a chromosome test many not survive later challenge in the U.S. Supreme
Court (source, The Texas Triangle, “Local Courts Get Inside
GLBT Genes: Texas Lesbians Will Legally Marry,” Sept. 2000)
September 2000. An Ohio juvenile
court takes a male child who says he wants to be raised as a girl way from
parents (divorcing) who plan to enroll him in school as a girl, and then places
a gag order on the parents (and foster parents) against talking to the media
(an important First Amendment challenge in my opinion). Columbus Dispatch, Sept. 21, 2000, article “Judge orders boys’s parents to
keep quiet in gender case,” by Kevin Mayhood.
October 2000: The Third Circuit (a three judge panel headed by Judge Black)
upheld a 1998 amendment to Alabama’s
obscenity laws that would ban the sale of sex toys used in masturbation. The
justification for the opinion referred to Bowers v. Hardwick (1986), in
that people do not have a fundamental right to homosexual or non-marital sexual
expression, even in private. The judge found a state interest in promoting
social moral standards and even in preventing the “waste” of potentially
procreative body fluids. Law Professor
Arthur S. Leonard writes about this at http://www.lgny.com/. At the circuit level, the law had been struck
down by federal judge Lynwood Smith.
November 2000: The 1st Circuit rules that other parties may post
the list of sites blocked by Internet filtering software (CyberPatrol)
without violating copyright laws.
November 2000: In Madonna
Sterling v. Borough of Minersville the 3rd Circuit holds that
the constitutional privacy rights of a gay man were violated when the police
revealed his sexual orientation to his family (in 1997 in Penna.)
November 3, 2000:
The California Board of Equalization approves a plan to give gay and lesbian
parents the same state income tax breaks allowed to unmarried heterosexuals
with children, based on “head of household” status. Dissenting board members
argued that the incentive to legally adopt the child (by a single parent) would
be removed.
November 10, 2000:
The state superior court in Allegheny County, Pa.
Prohibited adoptions by gay and lesbian couples. Only legally married couples
may adopt as couples, the court ruled. The ruling does not affect existing
couples. It does not appear that this ruling affects adoption by gays as single
parents. The plaintiff was Eileen Yacknin, an attorney whose partner adopted Yacknin’s two children.
November 16, 2000.
Coca-Cola settles out-of-court for $192.5 million a (protected) class action
lawsuit filed for African-Americans allegedly denied promotions or wage
increases because of “underground” racial discrimination. The penalty will be
divided partly among employees who are members of the class (although this
arguably constitutes “back wages”). Coca-Cola agreed to additional steps to
strengthen what amounts to affirmative action.
(The 1996 Texaco case is discussed at http://www.doaskdotell.com/content/xchap5.htm).
November 21, 2000.
A Court of Appeals in Virginia
upholds the states “Crimes Against Nature” law, at
least when applied to arrests for men soliciting sex in public parks. Article
by Laurence Hammack, The
Roanoke Times, Nov. 22, 2000. Text of opinion at http://www.doaskdotell.com/content/vasod.htm
November 28, 2000.
The Supreme Court, in a 6-3 ruling, decided that police may not set up random
road blocks to catch drug traffickers, absent probable cause for stopping
someone for some other offense. This had
come about due to road blocks in Indianapolis “The Fourth
Amendment would do little to prevent such intrusions from becoming an routine
part of American life.” So no “drug exception” to the Bill of Rights, even from a conservative
court.
December 12, 2000. The Supreme Court “remands” (effectively
denies future recounts) Bush v. Gore 2000 back to the Florida Supreme
Court, largely under equal protection grounds as well as Article II and federal
election statute grounds. See http://www.doaskdotell.com/content/bor2note.htm
for more in the context of voting “rights”; also see http://www.doaskdotell.com/content/morefund.htm
notes on Chapter 9).Text of Supreme Court Opinion (p.d.)
is provided at this site at http://www.doaskdotell.com/content/BushGore.htm.
Attorney Marshall Tanick argues that Justice Scalia
should have recused himself because of a conflict of
interest, his son’s employment with a law firm representing George W. Bush, and
that the “doctrine of necessity” would not have applied in this case (“Scalia
should have taken himself off case,” Minneapolis Star Tribune, Jan. 6, 2000, p. A19).
In 2000: Ticketmaster loses a suit against Tickets, Inc. for deep linking to
its site, bypassing the ads on its home page. "Hyperlinking does not
itself involve a violation of the Copyright Act," ruled U.S. District
Judge Harry Hupp. "There is no deception in what
is happening. This is analogous to using a library's card index to get
reference to particular items, albeit faster and more efficiently."
March 12, 2001:
A state circuit judge in Louisiana
dismisses a lawsuit against Oliver Stone and Warner Brothers for the 1995 film Natural
Born Killers, filed by a crime spree victim, Patsy Byers. The judge indicated that there was no
evidence that Stone intended to incite lawless action. However, in the Paladin
case cited above, a judge had allowed the case to go to trial.
March 16, 2001:
A state appeals court in Texas
upholds the Texas homosexual-only
sodomy law. Judge Harvey Hudson wrote “Certainly, the modern trend has been to
decriminalize many forms of consensual sexual conduct even when such behavior
is widely perceived to be destructive and immoral. Our concern, however, cannot
be with cultural trends and political movements because these can have no place
in our decision without usurping the role of the Legislature.” Visit http://www.lambdalegal.org/cgi-bin/pages/documents/record?record=809
March 21, 2000.
U.S. District Judge Charles Simpson upholds ordinances in Louisville,
Ky. And Jefferson
County banning discrimination in
employment and housing based on sexual orientation.
March 21, 2001.
The Supreme Court, in Adams v. Circuit City Stores, upheld the right of
employers to require job applicants or employees to forgo the right to sue and
to accept binding arbitration in employment and sexual harassment disputes, as
an interpretation of the 1925 Federal Arbitration Act. The Ninth Circuit has ruled that legal suits
based on civil rights laws are exempted from this law.
March 21, 2001
The Supreme Court rules that public hospitals may not test pregnant women for
drug use without their knowledge.
March 23, 2001. State circuit judge David Bogard
declares the Arkansas
homosexual-only sodomy law unconstitutional. “Homosexuality is not only a
question of morals,” he wrote; “the law hangs over their heads and treats them
as second-class citizens.”
March 28, 2001:
The Ninth Circuit rules that the abti-abortion web site
“Nuremberg Files” has a first amendment right to publish the names, addresses
and photos of abortion providers, as long as it does not incite specific acts
of violence against the providers.
“Political speech may not be punished just because it makes it more
likely that someone may be harmed at some unknown time in the future by an
unrelated third party.”
March 29, 2001. The Ninth Circuit rules that Medina Rene may
not, under federal law,
sue a Las Vegas
casino for allowing anti-gay sexual harassment on the job, because federal
civil rights laws regarding harassment do not include sexual orientation.
May 14, 2001:
The Supreme Court rules 8-0 that federal laws regarding controlled substances
to not allow an exception for the medical use of marijuana. Technically the ruling does not overturn laws
in 9 states making marijuana “legal” if prescribed for medical purposes.
Whether legally prescribed medications are as effective for
chemotherapy-induced nausea is still controversial. The ruling does not
preclude constitutional challenges to federal law. .
May 21, 2001:
A Hennepin County (Minneapolis, Mn.) district court judge (Delila
Pierce) rules the state’s sodomy law (Minnesota)
to be an unconstitutional invasion of privacy under the state constitution. On July 2, 2001 the ruling was extended by the same judge
to cover all Minnesota adults.
May 21, 2001:
The Supreme Court rules 6-3 that journalists may report information intercepted
from cell phone conversations even if obtained “illegally,” under the First
Amendment freedom of the press.
May 25, 2001:
The 11th Circuit rules that author Alice Randall and publisher Houghtom-Mifflin may publish the novel The Wind Done
Gone (note the ebonics), because it is a
legitimate parody of Gone with the Wind (by Margaret Mitchell and owned
by her estate) and not an illegal sequel according to copyright law. The new
novel recounts the events of Mitchell’s novel from the perspective of one of
the slaves.
May 29, 2001: Casey Martin v. PGA,
the Supreme Court rules that the Americans for Disabilities Act prohibits the PGA
from requiring handicapped golfer Casey Martin to walk the course as if walking
were part of the “competition.”
May 2001: Montgomery County
circuit judge DeLawrence Beard allows a Maryland
gay man to adopt his partner. One reader on queerlaw
commented that this had been done in Minnesota
in 1971 by Mike McConnell and Jack Baker, the later changing his last
name.
June 2001: An Alabama circuit judge that a divorced lesbian is a more fit parent for her daughter than her heterosexual
ex-husband.
June 11, 2001. In Danny Lee Kyllo
v. United States, the Supreme Court holds that the government’s use of heat
seeking devices without a warrant to look for indoor marijuana farms is
“unreasonable” search that might be further abused in the future with advances
in surveillance technology.
June 11, 2001. In Good News Club v. Milford (NY) School
District, the Supreme Court rules that a school district must allow a
religious club to meet off-hours in a manner commensurate with other clubs,
that this does not promote religion or violate separation of church and
state. Good News Club had argued that it
was actually excluded by viewpoint discrimination.
June 13, 2001 A federal judge in Seattle
rules that an employer must provide contraception coverage in its health care
benefits to satisfy gender discrimination laws.
June 26, 2001:
The Supreme Court upholds a 1999 2nd Circuit ruling that the New
York Times had committed copyright infringement by selling older writings
of freelance writers to e-publishing web sites without permission or
compensation. Most publishers today
negotiate e-publishing rights as part of their contracts. For
the opinion (Tasini v. The
New York Times), visit http://www.supremecourtus.gov/opinions/00slipopinion.html,
July 5, 2001:
From the ACLU: “A federal judge in Texas
improperly dismissed a lawsuit brought against the City of Houston
by a woman whose son was murdered by his ex-lover, the American Civil Liberties
Union charged in papers filed today at the federal appeals court in New
Orleans. The judge ruled that the woman could not sue
the city for police spurning repeated requests for protection because lesbians
and gay men are not entitled to protection from discrimination.” Apparently
this judge has not read Romer v. Evans
(1996).
July 10, 2001. The Wisconsin state
supreme court rules that a man can be ordered not to sire children as a
condition of probation for non-child-support. Three dissenting female justices
had asserted a “fundamental right” to have children, to parent.
July 11, 2001. A New Jersey
appeals court rejects an attempt by an employer to obtain the identities of
anonymous posters on investor trash boards on yahoo.com, for making harmful
comments about a company. The court said
that there must be strong probable cause (for example, that trade secrets were
compromised) before an ISP need reveal
identities of anonymous posters. The cases are Dendrite International v.
Public Citizen and Immunomedics. V. Doe.
July 25, 2001 A federal judge
dismisses the employment discrimination claims of Alicia Pedreira,
in her federal lawsuit against the Kentucky Baptist Homes for Children,
although it leaves intact the possibility that it is unconstitutional for
federal or state assistance to interfere with existing discrimination law
(which affects the “faith based initiatives” of President Bush). The original
ACLU writeup on this case is at http://www.aclu.org/features/f030901a.htm. The judge actually wrote: 'The
civil rights statutes protect religious freedom, not personal lifestyle choices.''l True, but there is taxpayer money
involved (as with the military).
July 25, 2001. The surviving female domestic partner of a
lesbian woman mauled to death by a dog in her San
Francisco apartment was allowed by a circuit judge to
proceed with a wrongful death lawsuit.
July 30, 2001. California
decides that a trans-gendered person is eligible for sexual reassignment
surgery under Medi-Cal (essentially Medicaid)
rules.
July 25, 2001. California
superior court judge James Richman dismisses a suit against Ilena
Rosenthal by at least two physicians (Barrett and Polevsay)
for supposedly defamatory postings about breast implants in a newsgroup. The
court held that section 230 of the 1996 Communications Decency Act (ironically,
perhaps) protects reposters to newsgroups, chat rooms
and discussion boards of possibly defamatory statements, although it would not
protect republishing in a more conventional sense. The dismissal also held that
most of the material was not really defamatory but fell under the Opinion Rule.
The court ruled that this suit was in essence a frivolous SLAPP (Statetic Lawsuit Against Public
Participation).
Aug 2001: A New Jersey circuit
court allows Jill Bacharach to hyphenate her last name to include that of her
lesbian domestic partner, to become Bacharach-Bordman.
Aug 6, 2001: The California supreme court (Justice Ming
Chin writing) rules 5-1 that victims of crimes cannot sue gun manufacturers
when criminals use their weapons illegally (a suit against Navegar
related to crimes committed in 1993 by Gian Luigi Ferri).
August 2001: “A New York Civil Court Judge, Douglas Hoffman, has ruled
that gay-life partners may be protected
by a rent regulation that prevents a landlord from reclaiming a rent-regulated
apartment for the use of the landlord's immediate family member if the tenant
or tenant's spouse is disabled”, Arthur S. Leonard, writing in Lesbian and Gay
New York, http://www.lgny.com/
August 2001: The Third Circuit upholds a federal district court ruling that
federal civil rights laws don’t allow a plaintiff to sue for same-sex sexual
harassment unless there is some other rationale upporting
gender discrimination claims or other claims well supported by law. Bucks
County Times, 8/5/2001
http://www.phillyburbs.com/couriertimes/news/news/0805antigay.htm
August 2001: The ruling, written by U.S. 3rd Circuit Judge Maryanne Trump Barry (the
sister of New York City developer Donald Trump), denied a sex discrimination claim
brought by John Bibby, a gay employee of the
Philadelphia Coca Cola Bottling Company. Writing in Lesbian and Gay New York http://www.lgny.com/, NYU law professor Arthur
Leonard comments: “When the plaintiff's claim is basically that they were
harassed because they are gay, they lose. When the plaintiffs can credibly
claim that they were harassed because of gender non-conformity, or because
another employee or a supervisor was demanding sexual favors that they refused,
they have a chance to win.” Suits based on harassment due to sexual orientation
may prevail when based on local or state laws.
August 2001: In response to a request from Arvin
Councilman Robert Brennan, the California Fair Political Practices Commission
ruled that a homosexual public official -- unlike a married person -- does not
have to abstain from voting on issues that might affect his or her domestic
partner's income. Bakersfield Californian, August 26, 2001 ( http://www.bakersfield.com/ ) However,
most employers that offer domestic partner benefits treat domestic partners as
spouses for conflict of interest purposes.\
August 2001: A federal judge ruled
Thursday that Florida's law banning >homosexuals from adopting children
is valid, saying the state has a legitimate interest in only allowing
married couples to adopt." U.S.
Judge James Lawrence King upheld the law barring homosexual adoptions against a challenge by
a man who wished ot adopt the foster child placed
with him and a man who wanted to adopt the child for whom he is legal guardian.
{AP}.
Homosexual families had not been shown sufficiently stable in experience
to override a legitimate state interest and legislature choice. (It is not
clear what level of scrutiny was used.)
August 2001. The 5th Circuit upholds a ruling
by a federal district court holding freelance author Vanessa Leggett in
contempt of court for refusing to turn over unpublished materials to a grand
jury. She
was working on a book on the death of a Houston woman, Doris
Angleton. According to an interview on CNN on January 4, 2002 she still has not
sought or obtained a publisher but being jailed was not a “publicity
stunt.” Theoretically, a private citizen
or a self-publisher (like me) could be forced to turn over private research
notes (based on interviews with people or even just unusual personal
observations) about a particular crime. The courts have held that Leggett is
not a “legitimate” member of the “press” (for a freedom of the press claim)
since she is essentially promoting her work on her own, and therefore has a
weaker First Amendment claim.
October 2001: Same-sex adoption
procedure nullified: Many couples could lose parental rights, Bob Egelko, San Francisco Chronicle Staff Writer
“Over the past 15 years, thousands of same-sex
couples in California have adopted children through a
state-approved procedure called second-parent adoption, in which a biological
parent's unmarried partner gains parental rights.
But a state appellate court in San Diego has ruled 2 to 1 that California law does not authorize second-parent
adoptions.
Lawyers said yesterday that the stunning decision
could invalidate every such adoption in the state, unless the state Supreme
Court overturns the ruling.”
November 2001: Gays may conceivably
be entitled to the estates of partners who die without wills, the Washington
Supreme Court ruled Thursday.
The decision came as the justices ordered a new
trial for Frank Vasquez, who is claiming the $230,000 estate of his longtime
partner. An appeals court had found the claim invalid because same-sex
marriage is illegal in Washington. However there were facts in dispute that justified a new trial.
November 2001: A special state court has ruled that many
signatures intended to force a referendum on Maryland’s anti-discrimination law as collected by TakeBackMaryland may be invalid.
November 2001: A Colorado appeals court rules that a divorced parent
during visitation may not be prohibited from taking his child to a Metropolitan Community Church or from having same-sex guests.
November 2001: A federal civil jury
in Pennsylvania rules that police who threatened to tell the parents of a
teenager they arrested that he is gay may not be held liable for his suicide.
November 2001: A federal appeals
court rules that U.S. courts cannot roce
Yahoo! to follow French law or a law of any foreign country in restricting
content (Nazi items) on its site.
From Electronic Frontier
Foundation’s press release http://www.eff.org/effector/HTML/effect14.36.html#I
“The case arose after a French non-profit group dedicated to eliminating
anti-Semitism successfully obtained a court order against the availability of
Nazi materials via Yahoo!'s websites. This prohibition included not only the
auctioning of Nazi and related memorabilia but also "access via
Yahoo.com" to any site or service that "may be construed as constituting
an apology for Nazism or a contesting of Nazi crimes." For instance, Judge
Jeremy Fogel [San Jose,
Cal.] found that the search engine at
Yahoo.com produced 3,070 hits for "Jewish conspiracy" and 821 hits
for "Holocaust did not happen.'" The French order required Yahoo.com
to prevent French persons' access to such sites.”
The order can be enforced in France
by French courts on French-operated subsidiaries of Yahoo!
Novemeber 21, 2001: From Humane Rights Campaign:
The referendum to repeal Maryland’s anti-discrimination law will NOT appear
on the November 2002 ballot. The law, therefore, takes effect
immediately.
Late in the afternoon on Wednesday November 21, the lawsuit challenging the
signatures on the petitions to put the law on the ballot was settled. The
lawsuit alleged that many of the signatures were gathered improperly and
through misrepresentations of the intent of the law.
The reference is at http://www.hrc.org/actioncenter/
December 5, 2001:
According to the press, Los Angeles Superior Court Judge Emilie
Elias approved a stipulation that said that actor Tom Cruise "is not,
and never has been, homosexual and has never had a homosexual affair."
Cruise had entered a lawsuit over European publications on this subject but has
reportedly dropped it.
http://www.wral.com/entertainment/1100948/detail.html
Is this “court-made sexual
orientation”?
December 27, 2001
On Friday, the PA Supreme Court issued an
opinion in a non-parent visitation case. The case involves PA's in loco
parentis doctrine
and whether a lesbian non-biological parent can seek visitation with a child
she helped raise over the objections of the child's
biological mother. The court ruled that she can seek visitation with the
child. The case will now be sent back to the lower courts, which
will use a "best interest of the child" to determine if visitation
will take place. (Queerlaw).
Jan. 2 2002: Vermont's Supreme Court has rejected a challenge to
the civil unions law granting gay couples many of the
rights
and benefits of marriage.
Jan 9, 2002:
The Supreme Court rules 9-0 that the ADA (Americans with Disabilities Act) is invoked
when someone cannot readily “perform activities that are of central importance
to most people’s daily lives: (Sandar Day O’Connor)
but not necessarily when someone cannot perform certain manual tasks on a
particular job. The plaintiff had been Ella Williams, who had filed a claim
base din part on carpal tunnel syndrome acquired at work. It is still possible,
but more difficult, for someone with one disability such as carpal tunnel to
invoke the ADA.
Jan. 23, 2002: A Georgia appeals court has ruled that Vermont's civil
unions law does not create a partnership equivalent to marriage.
The Georgia Court of Appeals ruled Wednesday that Susan Freer and her lesbian partner
could not seek child-visitation rights because they are not married. The couple established a civil
union in Vermont in 2000
February 2002: An Alabama state supreme
court judge rules that a heterosexual father may have custody of the
children after his breakup with a lesbian wife. Judge Roy Moore (the “ten
Commandments judge”) goes on a tirade, writing
"No matter how much society appears to change,
the law on this subject has remained steadfast from the earliest history of the
law, and
that law is and must be our law today. The common law designates
homosexuality as an inherent evil, and if a person openly engages in such a
practice, that fact alone would render him or her an
unfit parent." (source,
A.P. story by Philip Rawls)
February 2002: FOR IMMEDIATE RELEASE (from queerlaw)
Boston, February 21, 2002
FOR MORE INFORMATION
Jennifer L. Levi, Esq.
(617) 426-1350
MASSACHUSETTS COURT FINDS SODOMY LAWS INAPPLICABLE TO PRIVATE,
CONSENSUAL CONDUCT
”The Supreme Judicial Court (SJC) today ruled that the state's centuries-old
sodomy laws are inapplicable to private, consensual conduct. In a brief
ruling, a unanimous court found that two provisions of Massachusetts law that
provide criminal penalties of up to 5 and 20 years for convictions for oral and
anal sex, respectively, may not be enforced against persons who are engaged in
such intimacy as long as the individuals did not intend public exposure.
In a case brought by Gay & Lesbian Advocates & Defenders (GLAD), nine
individuals who engage in intimate conduct of the type prohibited by the laws
challenged the constitutionality of the laws because they criminalize common
acts of intimacy. Although the court technically dismissed the case
because none of the plaintiffs were currently subject to prosecution, the court
for the first time declared that neither of the assachusetts
laws apply to private, consensual conduct.”
Februay 2002:
FOR IMMEDIATE RELEASE
Contact: Stacey L. Sobel, Esq.
February 25, 2002
215-731-1447 ext.11
Pennsylvania Court Awards Child Support in Case Between Lesbian Moms
Partner considered parent, even without biological connection
Philadelphia, PA – A Court of Common Pleas Judge in Cumberland County
ordered a non-biological co-parent to pay child support for the five
children of her former partner in Kove. v. Naumoff in a final order after
nearly two years of litigation. The case is one of the first of a handful
of cases around the country to address the issue of child support after
same-sex parents separate.
March 2002
The Supreme Court interprets a
federal housing law to mean that inhabitants of a HUB project can be evicted for criminal acts or
drug use of household members (even off the property) even when these tenants
have no knowledge of the offenses
March 2002
The Louisiana state supreme court refuses to strike down
its sodomy law (heterosexual and homosexual oral and anal sex). Reference: http://www.nola.com/news/t-p/metro/index.ssf?/newsstory/sodomy29.html\
April 16, 2002
The Supreme Court has struck down
the Child Pornography Protection Act, Ashcroft
V. Free Speech Coalition, case 00-795, that would outlaw the use of digital
images suggesting minors engaging in sex acts without hiring actual children.
The CNN reference is http://www.cnn.com/2002/LAW/04/16/scotus.childporn.ap/index.html
Here is a link to slip opinions from
the Supreme Court for years 2001/2002:
http://www.supremecourtus.gov/opinions/01slipopinion.html
May 13, 2002.
The Supreme Court, in ACLU v.
Ashcroft, maintains that the use of community standards would not by itself
invalidate the definition of “harmful to minors” in COPA (Child Online
Protection Act), just as it would not for obscenity. The Court leaves the
district court injunction in place, vacates the 3rd Circuit opinion
and orders the 3rd Circuit to examine COPA for other defects. See http://doaskdotell.com/content/colpa.htm
May 31, 2002
The Third Circuit holds that the
Children’s Internet Protection Act of 2001, which requires public libraries to
filter the Internet for matierals “harmful to
minors,” is unconstitional
June 11, 2002
The Supreme Court holds that the
Americans with Disabilities Act would not prevent a company from not employing
someone if employment in the company’s environment would endanger the person’s
health (say because of a disease) and if reasonable accommodation is
impossible.
The Supreme Court lets stand two
weapons convictions (Emerson v. U.S.
and Haney v. U.S.), not challenging but apparently agreeing with
the Bush administration’s position that the right to bear arms is an individual
right but is subject to reasonable and sometimes substantial restriction for
general public safety.
June 24, 2002
The Supreme Court rules that judges
may not (instead of juries) make findings of fact that result in death
sentences.
June 26, 2002
The Ninth Circuit rules that a 1954
law that inserts the phrase “under God” into the Pledge of Allegiance is
unconstitutional (violating the Establishment clause of the First Amendment).
The suit had been brought by Michael Newdow. The 1954
law had been passed to oppose “godless communism.” The decision seems to follow “ruthless
logic,” but the same logic could apply to the use of the word “God” on money. A
practical compromise for the pledge could be to say “One Nation” and then pause
to allow the audience to say the next two words voluntarily or not to say them.
On June 27, the Ninth Circuit would stay its own order and anticipate an en
banc hearing.
The Pledge of Allegiance was
originally invented by Francis Bellamy, a Baptist minister controversial for
his socialist leanings. Indeed, some persons have wanted to add the words
“equality for all” and to modify “all” to include the unborn.
Personally I deplore the personal
attacks on Mr. Newdow that have been reported. He has
raised a very important issue of constitutional principle, even if many people
feel that it is a red herring in practice.
June 27, 2002
The Supreme Court, in Lindsay Earls v. Pottawatomie
County School District (OK), rules that a
school district may require drug testing without probable cause of students
participating in any extracurricular activities.
The Supreme Court rules 5-4 that local school
districts or governments (such as the Cleveland Board of Education) may provide
vouchers for underprivileged children to attend religious schools. Is this
subsidizing education, or is it subsidizing religion (violating the
Establishment clause) also? (Or are the parents remaining control of religious
exposure?) The Court held that vouchers
can go to any private school and that the religious element is incidental.
July
30, 2002
The Ohio
Supreme Court announced a reversal in the Bicknell case, holding that a lesbian
couple could adopt the
same last name under Ohio's name change
law. This reversed a decision by the court of appeals, which had ruled
that allowing an unmarried couple, either same or opposite sex, to have the
same last name would violate public policy because it would mislead people into
thinking they are legally married.
August
2002. A US District court judge
dismisses a complaint against the Alabama