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FOR IMMEDIATE RELEASE,
April 27, 1989
LESBIAN AND GAY RIGHTS LAW ENTERS NEW STAGE
In federal and state courts around the country, the spring
of 1989 marks the emergence of a new phase in the development of
gay rights law, according to staff lawyers at the ACLU Lesbian
and Gay Rights Project. "This is the beginning of the post-
Hardwick era," said Nan D. Hunter, director of the Project. "In
the three years since Bowers v. Hardwick, the case in which the
Supreme Court held that a state could criminalize homosexual
sodomy, the ACLU and other gay rights advocates have shifted
their focus from sodomy law reform to other areas -- particularly
equal protection law, family benefits, and First Amendment
protection for speech.
"The coming year will see a new round of decisions at the
appellate court level on many of these important issues," Hunter
stated. "Our goal now is to expand Constitutional protection for
lesbian and gay Americans despite one of the worst decisions in
Supreme Court history."
The nation's most watched gay rights case is Watkins v.
United States Army, the ACLU's challenge of the Army's refusal to
allow the re-enlistment of Sgt. Perry Watkins solely on the basis
of his homosexuality. Last February, a panel of judges in the
U.S. Court of Appeals for the Ninth Circuit ruled in Watkins's
favor. The judges held that, notwithstanding Hardwick, gay
persons constitute a suspect class for equal protection purposes,
so that laws which discriminate against them (such as the Army's
regulations) must be strictly scrutinized. The panel found that
the Army regulations did not serve a compelling government
interest and thus were unconstitutional.
The Army requested and was granted a rehearing of the case
by an en banc panel of the Ninth Circuit. The argument took
place on October 12, 1988. No decision has been rendered by the
court, but one could be announced at any time.
Meanwhile, a very similar case has reached the Seventh
Circuit Court of Appeals -- BenShalom v. United States Army.
Like Perry Watkins, Miriam BenShalom was an exemplary soldier who
was nonetheless denied re-enlistment solely because she was a
lesbian. As in the Watkins case, the Army had no evidence that
BenShalom ever engaged in forbidden conduct. The Army seeks to
exclude her solely because she says she is lesbian. The federal
district court in Wisconsin ruled that BenShalom was protected by
both the equal protection clause and the First Amendment.
The ACLU's Lesbian and Gay Rights Project, with the ACLU of
Wisconsin, filed an amicus brief in the Seventh Circuit on behalf
of BenShalom and coordinated supportive amicus briefs from
several other organizations, including the American Psychological
Association and the Women's Legal Defense Fund. The case will be
argued in the Seventh Circuit in Chicago on May 18.
"We argue that the Army regulations are unconstitutional
using even the lowest standard of review -- a rational basis
test. The actual purpose served by the regulations is to enforce
the presumed prejudice of non-gay soldiers who the Army assumes
will object to serving with lesbian and gay comrades. That is
not a legitimate purpose," said William B. Rubenstein, Staff
Counsel to the ACLU's Lesbian and Gay Rights Project.
"We also argue that Miriam BenShalom's First Amendment
rights have been infringed. While the Army may be able to forbid
certain conduct such as sodomy, they cannot make it an offense to
speak about being gay," Rubenstein added.
While gay rights advocates eagerly await the equal protec-
tion decisions in these cases, they are also forging ahead on
other fronts, particularly around issues concerning family rights
for gay men and lesbians. In the leading case in this area, the
ACLU recently argued before New York's highest court that a gay
couple should be considered "family" for the purposes of a rent
control regulation. The New York City rent control regulation
protects spouses and other family members from eviction from an
apartment which had been their family home, in the event that the
tenant named on the lease dies.
In the ACLU's case, two gay men had lived together for more
than a decade in the apartment initially rented by one of them.
They had shared financial assets and introduced each other to
their friends and relatives as family and life partners until
one of the men, the first tenant, died of AIDS.
"We have asked the Court of Appeals to rule that the meaning
of the regulation must be construed so that our client and his
partner fall within the scope of the term 'family members,'" said
Rubenstein, who argued the case in the Court of Appeals for the
ACLU. "Alternatively, we seek a ruling that even if the regula-
tion is not construed in that way, the state constitution's equal
protection clause requires that he be protected because his
relationship was the functional equivalent of a family," Ruben-
stein added.
Realizing its importance, dozens of groups in New York,
including the City itself, have filed amicus briefs in the case
supporting the ACLU's position. "Because it is before the
highest court in New York State, the decision in this case will
finally decide whether gay couples will be treated equally under
rent control," stated Rubenstein.
First Amendment law is also an area of major concern in the
post-Hardwick era. In addition to the BenShalom case, the
Project is involved in several other major cases which seek to
protect speech about gay and lesbian issues. In GMHC v. Sulli-
van, the Project represents a number of AIDS service organiza-
tions in a challenge to the Helms Amendment. The Amendment,
passed in the U.S. Senate by a lopsided vote in 1987, forbids the
Centers for Disease Control from using any AIDS education money
"to promote or encourage, directly, homosexuality."
"We believe the Amendment is a content-based restriction on
speech which is unconstitutional," said Hunter, who is counsel
for the plaintiffs in the case together with the Center for
Constitutional Rights. "The Amendment will have the tragic
effect of diminishing the quality and quantity of education which
is needed to save lives," Hunter added.
The Helms Amendment challenge is pending in federal court in
the Southern District of New York. Since the case was first
filed last October, the state of New York has joined as an
additional plaintiff.
The Project also filed an amicus brief this spring in a
case challenging another Congressional restriction on gay-related
speech, the Armstrong Amendment. That amendment, which seeks to
overturn the victory in a discrimination case brought by a gay
student group against Georgetown University, permits religious
institutions in the District of Columbia to discriminate against
persons who advocate for gay rights, notwithstanding the Dis-
trict's gay rights bill. The ACLU's amicus brief argued that
the amendment violates the First Amendment rights of persons gay
and straight who speak or protest in favor of equal rights for
gay persons. The ACLU brief also argues that the law is an
indirect method of removing civil rights protections in D.C. for
gay students or staff at religiously-affiliated schools.
"Because the new law would allow penalties to be imposed
against anyone who condones homosexuality, it could operate to
sweep away anti-discrimination protections for gay and lesbian
persons at certain colleges," noted Hunter. The Armstrong
Amendment case was argued April 20 before the United States Court
of Appeals for the District of Columbia Circuit.
"These cases illustrate the extraordinary extent to which
lesbian and gay civil rights issues now constitute some of the
most exciting constitutional questions in our legal system,"
Hunter said. "Whatever the next round of decisions brings,
judges are increasingly aware that these are some of the most
serious and important issues they will face."
# # #
For further information contact:
Nan D. Hunter, (212) 944-9800, x545
William Rubenstein, (212) 944-9800, x544