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

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

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: or

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

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:

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.

-         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   or at

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

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

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 02139  

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  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 

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

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 for more in the context of voting “rights”; also see notes on Chapter 9).Text of Supreme Court Opinion (p.d.) is provided at this site at 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

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,

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, 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  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,

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

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, 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 ( ) 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

“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" 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 produced 3,070 hits for "Jewish conspiracy" and 821 hits for "Holocaust did not happen.'" The French order required 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

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.

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)
February 21, 2002

Jennifer L. Levi, Esq.


”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:\

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

Here is a link to slip opinions from the Supreme Court for years 2001/2002:

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

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 sodomy law (“sexual misconduct law”) on the grounds that no one is “harmed” by the law.

August 2002  A 51-year-old lesbian, Linda Kaufman, wins the right to proceed with the adoption of a foster child with the Virginia Department of Social Services.

January 2003.  The 4th Circuit says that the federal government may have the Pentagon hold an American citizen as an unlawful combatant when the individual has trained or fought with an enemy.

January 2003.  The Georgia Supreme Court unanimously strikes down the state’s fornication law.

March 7, 2003.  Third Circuit in Philadephia upholds injunction against Child Online Protection Act.

In April 2003, the Utah Supreme Court ruled that parents could not sue to remove a Wendy Weaver [aka Wendy Chandler]) just because of her sexual orientation or personal advocacy of her beliefs. She taught psychology and coached girls’ volleyball at Spanish Fork High School. At least one reader writes to me, “I took psychology classes with Wendy and she was an excellent teacher.”   An AP news story on CNN for this case was which also states that the Nebo School District would still have the authority to discipline any teacher in a manner consistent with its previously published personnel policies, but that the parents did not have standing to sue. The Utah ACLU’s account is at

In April 2003 a Florida appeals court strikes down a “Scarlet Letter” law that forces women to advertise their sexual histories before placing children for adoption, supposedly to prevent fathers from challenging adoptions after they occur.

On May 5, 2003 the Supreme Court held that First Amendment claims do not protect telemarketers for charities when solicitors make intentionally deceptive or fraudulent claims about how donated funds are used. However, states prosecuting or suing telemarketers must meet a high standard of proof that fraud was intentional and material to the financial “success” of the fundraising. The Opinion is at

Or (without all footnotes) at

The case is Illinois ex rel. Madigan, Attorney General of Illinois v. Telemarketing Associates Inc. et al. The Illinois Supreme Court had dismissed an attorney general’s complaint on the theoretical ground that the First Amendment’s guarantee of free speech prevented the government from deeming any particular level of fund-raising expenses to be unacceptable.

June 10, 2003. The Supreme Court rules that circumstantial evidence can be used in litigation accusing employers of discrimination, in a case against Las Veags Caesar’s Palace.

June 16, 2003: The Supreme Court allows the government to limit campaign finance contributions from advocacy groups in some circumstances.

We expect a ruling very shortly on Lawrence v. Texas, the homosexual-only sodomy law (on Thurs. June 26), as well as the affirmative action case involving the University of Michigan law school.

June 23, 2003: The Supreme Court has decided 5-4 that the University of Michigan Law School can consider race as a factor in admissions.  However the Law School did not have numerical points for race, only subjective consideration.

The Supreme Court has reversed the point system (for race) in use at the University of Michigan undergraduate admissions program. However, it has allowed less specific means to consider race in undergraduate admissions.

 The Supreme Court Opinion Web site (for opinions in PDF format) is

June 23, 2003: The Supreme Court ruled that a law requiring public libraries to use anti-pornographic filters to get federal funds is constitutional, even if the filters sometimes block non-pornographic materials. This is a 6-3 ruling, but two of the justices held that libraries must disable filters for adult patrons who want them to. 

The case is United States v. American Library Association, Inc., a challenge to the Library Services and Technology Act (LSTA).

The references is

The findlaw reference for the court opinion is

On June 26, 2003 the Supreme Court overruled the Texas sodomy law, apparently on due process grounds. Justice Kennedy, normally a mainstream conservative, wrote the majority opinion. The case is Lawrence v. Texas.  It is important that the Texas law applied to homosexual acts only and made certain acts misdemeanors. It is not yet clear how this ruling affects sodomy laws not limited to homosexuals, but it may mean that all such laws (including Georgia’s) are unconstitutional. It is also unclear how this affects Article 125 of the UCMJ for members of the Armed Forces, however as a constitutional matter courts tend to defer to the military and to Congress’s enumerated power to regulate the military separately. The ruling may have a psychological effect on the course of such issues as gays in the military, gay marriage, and (especially, since sodomy laws cannot be used as an excuse) gay adoptions and custody cases. More material is at

Some commentators do believe that all sodomy statues have been invalidated. For the complete text at this site (public domain) see

July 2003: The Ninth Circuit, in Kelly v. Arriba Software ( held that indexing of websites or providing links with reduced resolution thumbnail images does fall with acceptable Fair Use of the Copyright Law, and allowed a lower court to review the issue of whether opening another browser window when providing the link (“in-line linking” and “framing”) violates the Copyright law.  Here is a link at to provide the legal archive:    Note that does not do “framing” of links.

August 2003. The California Supreme Court Justices, a vote of 6-1, reversed a decision of the California Court of Appeals from October, 2001, which held that the California adoption statutes do not permit second-parent adoptions.

We wait for important decisions on same-sex marriage from state supreme courts in Mass. and N.J. 

A federal judge in
Oklahoma ruled on September 24, 2003 that the Federal Trade Commission did not have the authority to run a do-not call list. When Congress tried to remedy that immediately, another federal circuit judge in Denver (Edward W. Nottingham) ruled that it is unconstitutional (according to the First Amendment) to maintain a do-not-call list that “discriminates” against commercial speech or commercial interests as opposed to political, artistic or non-profit.  The name of the case is Mainstream Marketing Services v. Federal Trade Commission.

October 7, 2003: The 10th Circuit Court of Appeals stays Nottingham’s order and allows the do-not-call to go through.

October 14, 2003. The Supreme Court let stand a federal court of appeals ruling that allows doctors to discuss and recommend medical marijuana to patients. This upholds the medical marijuana provisions of seven states within the Ninth Circuit.

Novmber 18, 2003. The Massachusetts State Supreme Court (Goodridge v. Department of Public Health) rules that the state cannot deny legal marriage recognition for same sex couples. The decision was 4-3. However, the Court did not grant marriage licenses and ordered the state legislature to resolve the issue within 180 days. There seems to be a deference to the idea that interfering with a same gender marriage choice may be unconstitutional sex discrimination. There could be downstream implications for the application of the Full Faith and Credit Clause, but the state supreme court seems to be trying to prevent this. The CNN reference is  Apparently, the opinion was influenced by Lawrence v. Texas.

I have a detailed discussion of the same-sex marriage issue at

Dec 18, 2003. The 2nd Circuit rules that the president is not entitled to hold a stateside American citizen (Joseph Padilla) without formal charge as an unlawful combatant.

Dec 18, 2003  The 9th Circuit rules that at least one (and maybe all) combatant held at Guantanamo is entitled to legal representation and a formal hearing.

Dec 18, 2003  A federal judge rules that copyright law does not necessarily apply to shared files on home computer network and that an Internet Service Provider (Verizon) does not have to give the identity of customer due to allegations (by the RIAA) about possible copyright infringement on the customer’s own computer.  The Court took the position that it does not have the prerogative to craft a law itself with respect to file-sharing and believes that Congress has not been aware of the potentialities of P2P computing when crafting intellectual property law. There is still the possibility of subpoena of a specific person if a formal lawsuit is filed against that person however (a civil procedure question), so suspected infringers could be subject to defending themselves against actual lawsuits (and the legal costs thereof) without the courtesy of  case-and-desist warning letters first.

On January 23, 2004 a federal judge in Los Angeles (Audrey Collins) declared part of the Patriot Act unconstitutional. It was impermissible to bar giving expert advice to a designated terrorist organization if the advice consisted of non-violent means; the First Amendment only allows the government to intervene with consultation or speech threatens imminent lawless action. The case involved a group helping Kurds with self-determination within Turkey.

January 28, 2004, the 11th Circuit rules that Florida may ban persons who engage in homosexual acts from adopting children, even though it allows single heterosexuals to adopt. “The state of Florida has made the determination that it is not in the best interests of its displaced children to be adopted by individuals who ‘engage in current, voluntary homosexual activity’ and we have found nothing in the Constitution that forbids this policy judgment,” Judge Stanley Birch wrote in the 3-judge panel’s opinion. Here is the (p.d.) text of most of the Opinion.

February 4, 2004. The Massachusetts State Supreme Court (Goodridge v. Department of Public Health) rules that it really does mean that, under the current state constitution, the state must recognized same-sex civil unions as full marriages (by May 17, 2004). ''The history of our nation has demonstrated that separate is seldom, if ever, equal,'' the four justices who ruled in favor of gay marriage wrote in the advisory opinion that had been requested by the state Senate in its mandate to decide how to comply with the ruling. Here is the opinion text.

February 24, 2004. The Supreme Court rules that it is permissible for employers to have some provisions that favor older workers, despite age discrimination laws.

February 25, 2004.  The Supreme Court rules that a state (Promises Scholarship in Washington) that subsidizes secular university study may withhold aid for divinity or ministry education.

“A California appeals court on Friday (Feb 27, 2004) overturned as unconstitutional a 1999 trade secret injunction against Andrew Bunner that prohibited him from distributing the DeCSS DVD decryption computer code.  The court found there was no evidence that the Content Scrambling System (CSS) encryption technology used in DVD movie disks was still a trade secret by the time that Bunner posted DeCSS code on his website.  The Court therefore held that the injunction violated Bunner's constitutional free-speech rights.” (Source, bulletin March 3, 2004 from Electronic Frontier Foundation.)

March 24, 2004: The Tennessee Court of Appeals has struck down a court order that told a gay parent (Joseph Hogue) not to do anything which "exposes" his son to "the gay lifestyle," according to the American Civil Liberties Union which represented the parent.  The court went on to say that "[n]either gay parents nor heterosexual parents have special rights," and that courts should follow the same principles in placing limits on visitation and custody for both gay and straight parents. The decision came in the case of Joseph Hogue, who was sentenced to two days in jail in September 2002 for telling his son that he is gay—the ultimate “don’t ask don’t tell.” 

Multnomah County, Oregon registered 3022 gay marriages in March and April 2004 after Judge Frank Bearden ruled that the state of Oregon must “accept and register” marriages of same-sex couples

May 2004: Judge Nancy Gertner in a federal district court in Boston notes that saying that someone is homosexual no longer defames them and throws out a libel suit against an author and publisher of a biography of Madonna (his name had appeared in a caption under a picture of Madonna walking with a homosexual man).

June 1, 2004. Federal Judge Phyllis Hamilton rules that the partial-birth-abortion ban is unconstitutional, primarily because of overbreadth. She rules that the law could be construed as to prohibit many “legitimate” early abortion procedures.

June 14, 2004. The Supreme Court rules 8-0 that Michael Newdow did not have standing to sue (in behalf of his “son”) over the inclusion of the words “under God” in the Pledge of Allegiance, because he was not legally married to the mother of the child. It would seem to me that this precedent could have significance in the gay marriage debate. Justices O’Connor and Rhenquist wrote that the Court should have taken up the constitutional questions and argued that the phrase is ceremonial and nature and not be subject to a “heckler’s veto” from one person. 

June 28, 2004 Hamdi v. Rumsfeld. The government must give access to attorneys for a US citizen held as a combatant in an enemy zone, but the government may detain American citizens suspected of waging war against the Y.S.  Rasul v. Bush. A similar ruling applies to detainees at Guantanamo. The case Rumsfeld v. Padilla was dismissed on a technicality,

6/29/2004:  The Supreme Court has just extended the injunction against the enforcement of COPA. Apparently it is being sent back to the original district court in Pennsylvania for a detailed trial on the merits. Go to

7/22/2004.  The 11th Circuit enbanc in Atlanta declines to overturn a Florida law banning adoption by gay couples. The judge Stanley Birch ruled that he personally disagreed with the law and believe that the gay couple that had provided foster care should be able to adopt the children they had cared for, but that the Constitution did not clearly prohibit the Florida legislature from acting on its perceptions of the best interest of minors even if those perceptions were misguided; adults were not being denied equal protection or fundamental rights. The vote was 6-6 The plaintiffs were Douglas Houghton and Steven Lofton. 

7/29/2004.  The 11th Circuit federal appeals court upheld a 1998 Alabama law banning the sale of sex toys in the state, ruling the Constitution doesn't include a right to sexual privacy. In a 2-1 decision overturning a lower court, a three-judge panel of the 11th U.S. Circuit Court of Appeals said the state has a right to police the sale of devices that can be sexually stimulating.

8/2/2004 In Washington state, Seattle (King County) Judge William Downing ruled that an adult has a fundamental right to marry a consenting adult partner of his choice, and that the state had no legitimate rational purpose in interfering. The ruling was stayed for the state supreme court. This was in regards to a female couple Vega Subramaniam and Mala Nagarajan

8/12/2004  The California Supreme Court nullifies gay marriages conducted by San Francisco mayor Gavin Newsome because they are in contradiction to California law and there has been no fining that California marriage law is unconstitutional, although the Court left open the possibility that such a finding could be made later.

8/12/2004 Labor union disputes have sometimes gone wrong for gays, as in a case in Massachusetts when a gay member (Peter D. McGarth) of management was targeted with anti-gay and offensive comments as a “scab” by striking union members (at Commonwealth Gas). In an extremely detailed article by law professor Arthur S. Leonard, “Limits on State Gay Rights Law Appeals: Court rules federal labor law might preempt Massachusetts civil rights protections”, at Leonard relates that federal appeals court judge Nancy Gertner indicated that federal labor relations law superseded state gay ENDA-style law. Federal law apparently does not explicitly prohibit homophobic remarks in union pickets and demonstrations and has tended to forgive highly emotional or adversarial behavior during labor demonstrations. But the tendency of rank-and-file union members in a blue-collar environment to use homophobic remarks does show the resentment of some “family breadwinners” against “yuppie class” members whom they think don’t accept such responsibilities.

8/19/2004: In an opinion related to a joint bankruptcy filing of Lee and Ann Kandu, who had married in British Columbia, federal bankruptcy judge Paul Snyder held that the Defense of Marriage Act of 1996 was not necessarily unconstitutional. The government had argued that the differing treatment was justified as "rationally related to the legitimate government interest in encouraging the development of relationships optimal for procreating and childrearing."  "This court's personal view," he wrote, is "that children raised by same- sex couples enjoy benefits possibly different, but equal, to those raised by opposite-sex couples,” however personal views were not sufficient to overcome what might be a rational state interest. This decision did not relate to the Full Faith and Credit issue, only to the definition in federal law.

8/19/2004: Pasedena, CA – (From EFF): Today the Ninth Circuit Court of Appeals made a crucial decision in support of technology innovators by declaring that distributors of the peer-to-peer software Grokster and Morpheus cannot be held liable for the infringing activities of their users. The Electronic Frontier Foundation argued on behalf of Streamcast, the creators of the Morpheus software, in a case that pitted dozens of entertainment conglomerates against two small software companies.

The Ninth Circuit decision is based in part on the fact that P2P networks have significant non-infringing uses, and that they can help artists earn money. The ruling is
similar to the Supreme Court's decision in the 1984 Betamax case, which determined that Sony was not liable for copyright violations by users of the Betamax

"Today's ruling will ultimately be viewed as a victory for copyright owners. As the court recognized today, the entertainment industry has been fighting new technologies for a century, only to learn again and again that these new technologies create new markets and opportunities," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "There is no reason to think that file sharing will be any different."

Here is a link to the Opinion (findlaw). The short name of the case is Metro-Goldwyn-Mayer v. Grokster.

August 23, 2004, the Court of Military Appeals declined to take it upon itself to declare Article 125 unconstitutional, notwithstanding Lawrence v. Texas. The case is United States v. Marcum.

From SLDN: “After the Supreme Court’s decision in Lawrence, the Court of Appeals for the Armed Forces granted appellant the right to challenge to continued validity of Article 125.  The court noted that “constitutional rights generally apply to members of the armed forces unless by their express terms…they are inapplicable.”  The court suggested that consensual sodomy, by itself, even in the military context, may be within the constitutional protection defined by the Supreme Court.  The Court of Appeals for the Armed Forces ruled, however, that the additional aspect of that conduct occurring within the context of a superior / subordinate relationship, took the conduct outside of the constitutional protection defined by the Supreme Court.” The SLDN Press Release is at The opinion text (PDF) is at

September 9, 2004. The 6th Circuit rules that rap musicians must get licenses for any other music that they use, however unrecognizable. The case involved the 1998 move I Got the Hook Up from No Limit Films. 

September 10, 2004. U.S. District Judge Jan E. Du Bois strikes down a Pennsylvania law that requires ISP’s and cable companies to shut down (upon orders from state prosecutors) access to IP addresses leading to child pornography sites. Because of network router architecture, this could not be done without shutting down about 1 million legitimate sites because of about 400 offenders. It would be permissible to remove illegal content, however. Story is by Jonathan Krim, The Washington Post, Sept. 11, 2004.

On September 29, 2004 federal Judge Victor Marrero ruled that the provision in the Patriot Act allowing the FBI to demand information from Internet Service Providers without judicial oversight or notification is unconstitutional. He wrote that the provision “effectively bars or substantially deters any judicial challenge and imposes silence on targeted companies, in violation of the First Amendment. 

In the autumn of 2004 U.S. District Judge Colleen Kollar-Kotelly overruled a 2002 Federal Election Commission decision to exempt the Internet from most of the provisions of the Bipartisan Campaign Reform Act of 2002.

On November 29, 2004 the Third Circuit ruled that colleges may ban military recruiters and despite receiving DOD funds, in a 2-1 opinion (effectively overturning the Solomon Amendment within the Third Circuit). The Judges took the Boy Scout Dale case and inverted the reasoning. CNN story is The  Precedential 102 page Opinion is at   I had difficulty opening this in Acrobat 6.0 but could open it in 4.0 and browse it in IE 6.0. Check later to see if this file is fixed. Right now the file will not save on a computer and be readable even though it is p.d.

About December 1, 2004: The U. S. Army Court of Criminal Appeals overturned the guilty plea of a soldier Kenneth Bullock for heterosexual oral sex (sodomy, a violation of UCMJ 125), with much of its reasoning based on Lawrence v Texas. This ruling may well help in constructing more legal precedential arguments against DADT;  as with SLDN’s lawsuit of Dec 6, 2004. See or Michael Dobbs, “Some Believe Ruling Undercuts Don’t Ask,” Dec. 8, 2004, The Washington Post, p. A11.

Dec. 2004: A case in the California appeals system to watch is Barrett. V. Rosenthal:

According to the 1996 Telecommunications Act (one portion of which was the notorious Communications Decency Act, struck down by the Supreme Court in 1997), Internet Service Providers and other utility-oriented third parties cannot be held liable for harmful content written by others, especially libel. A California state appeals court opinion has jeopardized this interpretation. According to Electronic Frontier Foundation:

“Last week (that is, the first week of Dec. 2004) the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union of Northern California (ACLU) filed a friend-of-the-court brief in a case that could undermine a federal statute protecting the free speech of bloggers, Internet service providers, and other individuals who use the Internet to post content written by others. The case in question is a libel suit filed against women's health advocate Illena Rosenthal after she posted a controversial opinion piece on a Usenet news group. The piece was written not by Rosenthal, but by Tim Bolen, a critic of plaintiff Terry Polevoy. In their brief, EFF and the ACLU argue that Section 230 of the federal Telecommunications Act of 1996 protects Internet publishers from being held liable for allegedly harmful comments written by others. Similar attempts to eliminate the protections created by Section 230 have almost universally been rejected, until a California Court of Appeals radically reinterpreted the statute to allow lawsuits against non-authors.”  The brief is at

Dec 28, 2004. The Ninth Circuit rules that a woman cannot sue an employer (she was a casino bartender) for sex discrimination when she was forced to wear makeup. The litigants were Darlene Jespersen and Harrah’s Operating Company.

Dec. 29, 2004.  In Arkansas, Pulaski County circuit Judge Timothy Fox ruled that Arkansas Child Welfare Agency Review Board cannot forbid the placing of a child in a foster home merely because the home has a gay household member, and that furthermore the Board was not entitled to pass its own rules based on its view of “public morality.” One wonders what kind of pseudo due process could have established that a particular home has a gay household member.

In early January 2005 the Eighth Circuit also ruled that plaintiffs could not get the names of customers using P2P networks without filing lawsuits and having actual evidence of copyright infringement. The EFF story is at  The opinion is at

January 19, 2005:  Judge James L. Moody upheld the 1996 Federal Defense of Marriage Act (DOMA). The plaintiffs, Nancy Wilson and Paula Schoenwether, a couple for 27 years, were married in Massachusetts in July. They wanted their union recognized in Florida, where state law specifically bans same-sex marriages.

Jan. 14, 2005 the Virginia state supreme court strikes down a fornication law banning sexual relations between unmarried persons.

Jan. 20, 2005.  Federal judge Gary Lancaster in the Western District of Pennsylvania strikes down a federal anti-obscenity law in The United States of America v. Extreme Associates. In Aug. 2003, pornographers Rob Zicari and spouse Janet Romano were indicted on ten counts of producing and distributing obscene materials, facing up to 50 years in prison and a fine of $12.5 million. They faced up to 50 years in prison and a $2.5 million fine. The judge wrote, “The government can no longer rely on the advancement of a moral code, i.e. preventing consenting adults from entertaining lewd and lascivious thoughts as a legitimate, let alone compelling, state interest,” as a result of reasoning in the sodomy case Lawrence v. Texas (2003). The judge does seem to have invoked the “fundamental right to privacy.”  It is likely that the government will appeal, and the legal logic of Hamling might apply.

Feb. 4, 2005; In a 62-page decision, the first in New York State to affirm the
rights of gays to marry, Justice Doris Ling-Cohan of State Supreme
Court wrote that New York State's Domestic Relations Law, which dates
to the 19th century, is unconstitutional. The law, she wrote,
violates gay couples' due process and their rights to equal
protection under the law.

Feb. 24, 2005: Judge Robert Sweet rules that The New York Times has the right to protect the confidentiality of its sources by refusing to give the government phone records in some circumstances. These involved calls by Judith Miller and Phillip Shenon regarding the 9/11/ attacks. (AP story by Larry Neumeister).

March 1, 2005. The Supreme Court rules 5-4 in Roper, Superintendent, Potosi Correctional Center v. Simmons, that the death penalty for anyone under 18 (and for any adult whose capital crime was committed before he or she turned 18) violates the 8th Amendment provision prohibiting cruel and unusual punishment. Seven states (including Missouri, where this case occurred, and Virginia, where Malvo occurred) allowed executions for minors. No other first world country allows minors to be executed.

March 11, 2005.  Santa Clara, CA Superior Court Judge James Kleinberg rules that no one (that is, no blogger) may release information in a public record if that information was obtained illegally (that is, it is a trade secret or is classified information). (Rachel Konrdad, AP Technology writer). The case is Apple Computer v. John Doe’s (the “Asteroid” case). 

March 14, 2005: San Francisco Superior Court Judge Richard Kramer rules that California’s law banning same-sex marriage is an unconstitutional denial of equal protection without rational basis. The AP news story (“Judge Says that Calif. Can’t Ban Gay Marriage”) is at 


March 28, 2005. The Supreme Court rules that the 1972 Title IX law protects whistleblowers who protest discrimination in federally funded educational institutions. The case involved Roderick Jackson, a girls’ basketball coach in Birmingham, AL who complained that boys’ teams were getting more support.


March 30, 2005. The Supreme Court rules that the federal Age in Employment Discrimination Act (ADEA, 1967/1986) allows a measured amount of “disparate impact” analysis when an employee over 40 maintains that he or she was indirectly affected by an employer’s policy. The case is Smith v. City of Jackson. 03-1160. The case involved police pay raises, but the principles could also apply to promotions and layoffs. It is not clear how this opinion would affect informationt technology, where older workers (skilled in mainframe) have sometimes been displaced when they cannot develop expertise in newer programming technologies quickly.


We understand that there is a new suit to overturn a North Carolina law against opposite-sex cohabitation without marriage. Apparently this came after an eviction attempt. More details to follow.


May 6, 2005. A federal appeals court (the District of Columbia Court of Appeals) strikes down an FCC antipiracy regulation requiring television and computer manufacturers to provide new technology (the “braodcast flag”) preventing recopying of digital video and music materials. Here is EFF’s reference on this:   Opinion (American Library Association v. FCC) is at


May 12, 2005. Federal Judge Joseph Bataillon stikes down Nebraska’s ban on same-sex marriage (a state constitutional amendment adopted in November 20000, saying that it goes beyond the issue of the institution of marriage (the protection of the emotions surrounding it) to interefer with the rights or potentialities of potential adoptive or foster parents and of persons living together in a supportive environment.


June 6, 2005  In Monson and Raich v. Ashcroft, the Supreme Court ruled, 6-3, the the federal government can prosecute medical users of marijuana even within a state (overriding a state law) under federal laws because of broader financial and social implications. States allowing some medical use include Califorina, Alaska, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont and Washington. Arizona. Rehnquist, Thomas and O’Connor dissented., somewhat on states’ rights grounds. The ruling does not strike down the state laws themselves; the court was not asked to overturn those state laws per se.


June 27, 2005.  In a case based in New London, CT, the Supreme Court rules that eminent domain can be used to take over property to sell to private developers in many cases where there is a compelling public benefit.


June 27, 2005.  MGM v. Grokster, the Supreme Court rules that software developers or service providers could bear downstream liability for customer copyright or other legal violations if these companies deliberately encourage customers to violate the law. See


June 27, 2005  The Supreme Court disallows two Kentucky displays of the Ten Commandments but allows a long standing “cultural” display near the Texas state capitol in Austin, a display similar to that in the U. S. Supreme Court. Justice Breyer holds that antipathy to religion would itself inspire religious divisiveness. Justice O’Connor comments on the record around the world of religious intolerance by governments.


Oct. 5. 2005. The Deleware Supreme Court rules that Comcast does not have to identify anonymous writers who created posters about Smryna councilman Thomas Cahill, which he claimed to be defamatory. The plaintiff would need more actual evidence of defamation and inform the writer that he might be subpoenaed. Judge Myron Steele wrote “The court’s determination to require sufficient evidence before a critic is outed will go a long way toward reassuring citizens that they remain free to criticize public officials.”  AP Story by Randall Chase.


Oct. 20, 2005. The Kansas Supreme Court ruled unconstitutional a state law that sentences offenders of statutory rape or underage sex laws to longer sentences for homosexual offences than heterosexual. Under the state’s “Romeo & Juliet law” (common in many states) the sentence is less if the perpetrator is less than four or a certain number of years older than the underage person, when the act is heterosexual. Matthew Limon will not have to serve an extra 16 years.  story by Elizabeth Weill-Greenberg.


Jan. 16 2006. The Supreme Court upholds Oregon’s law allowing physician assisted suicide in some special circumstances (where a patient has less than six months to live) with controlled substances.


Jan. 20, 2006  In Maryland, Judge M. Brooke Murdock (Baltimore) ruled that the state law banning gay marriage is discriminatory and cannot withstand constitutional challenge, on Jan. 20, 2006.


March 6, 2006.  The Supreme Court unanimously upholds the “Solomon Amendment” that requires universities receiving federal monies to admit military recruiters on campus, despite the a university’s non-discrimination policy with regard to sexual orientation. The case is FAIR v. Rumsfeld (see the 3rd Circuit ruling in Nov 2004, discussed above.)  For more, see


April 20, 2006. Judge Reinhardt, of the 9th Circuit, writes a 2-1 opinion that a student (Tyler Chase Harper) may not wear a T-shirt at a public school that says “Be Ashamed, Our School Embraced what God has Condemned” and a questionable scriptural reference “Homosexuality is shameful Romans 1:27” as a reaction to a Gay-Straight Alliance “Day of Silence” at Poway High School. There is an objection that this ruling stilts one point of view at the expense of another.



April 24, 2006.   A federal court in Massachusetts dismisses Cook v. Rumsfeld, an attempt to strike down “don’t ask don’t tell.” Details at  Opinion at


May 30, 2006  Garvetti et al. v Ceballos – By a vote of 5:4 the supreme court rules that whistleblowing speech by public employees does not always receive First Amendment protection from discipline.  Justice Kennedy wrote "When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."   As known from school system cases, the Pickering test can be applied. CNN story by Bill Mears, “Court turns down on whistleblowers”: 


June 29, 2006. The Supreme Court rules, 5-3, that the president does not have authority under statutory law to order military tribunals of prisoners at Guantanmo, Cuba. The ruling does not affect keeping the camp open.


August 17. 2006. ACLU v. NSA, federal district court judge Anna Diggs Taylor rules constitutional a program by the Bush administration to practice unwarranted surveillance of international telephone calls (and possibly email) with the National Security Agency. Here is the link for the opinion.


Oct 25, 2006. In Mark Lewis and Dennis Winslow, et al. v. Gwendolyn L. Harris, etc., et al, (A-68-05) the New Jersey state supreme court rules 4-3 that the state must give same-sex couples the same rights as heterosexual couples, but does not have to use the word “marriage.” The blogspot entry is


Nov 21, 2006, Bloomberg, “Protection for Web Publishers”, reprinted in The New York Times, the California Supreme Court ruled “in a unanimous decision,  those claiming defamation could sue only the original source of the comments, not publishers or distributors, even if the distributor was an individual. Internet users are protected by the same 1996 Communications Decency Act that grants immunity against defamation claims to publishers in most circumstances.”  Link is this. However, critics have claimed that, if amateurs want to be regarded as legitimate journalists, they have to behave and be held accountable like journalists.

March 9, 2007. The DC Appeals Court overturns the District of Columbia residential gun ownership ban, 2-1.  Blog entry here. 


March 22, 2007. Judge Lowell Reed of the Eastern District of Pennsylvania strikes down COPA, the Child Online Protection Act of 1998. Here is the blogger entry.


April 2, 2007   The Supreme Court issues two rulings recognizing the importance of countering global warming, one involving the Environmental Protection Agency, the other about Duke Power Company. Blog entry:


April 18, 2007. In Gonzalez v. Carhart, the Supreme Court upholds a federal law prohibiting a rarely used partial birth abortion in the 2nd or 3rd trimester. Slip opinion. Blogger entry


May 29, 2007.  The Supreme Court acknowledges a 180 limit on most lawsuits involving gender disparity in pay Ledbetter v. Goodyear. AP story. 


June 25, 2007.  The Supreme Court rules 6-3 (Morse v. Frederick) that a school system in Alaska could suspend student Joseph Frederick for displaying a sign that read “Bong Hits 4 Jesus” at a school sponsored event just outside of school property on a public sidewalk. The message was interpreted as prompting illegal drug use (at a school sponsored event however).   The opinion seems important in that it recognizes the concept of implicit content, although within close proximity to a school system. The Opinion is at this location:  Blogger commentary:


June 25, 2006  The Supreme Court rules 5-4 that political advocacy groups may issue ads mentioning candidates as long as they don’t say “vote for …” without restriction on campaign finance. This pokes a hole in McCain-Feingold but protects political bloggers. See  The case is Federal Election Commission v. Wisconsin Right to Life. Slip opinion is here.


June 25, 2006, the Supreme Court refuses to allow a suit by citizens that would allow faith-based initiatives to receive federal money for charity. The plaintiff was the Freedom from Religion Foundation. NBC4 story is here.


June 25, 2006 A DC Superior Court judge ruled against Roy Pearson in his suit against Soo Chung and Jim Nam Chung, the owners of Custom Cleaners, in a suit many thought was frivolous and an argument for “loser pays” rules for tort reform. The plaintiff may eventually have to pay attorneys fees for the defendants. The NBC4 story is here. .

June 28, 2007, the Supreme Court ruled that race cannot be used as a factor in reassigning students among public schools (busing). Blogger entry  (Parents Involved in Community Schools v. Seattle School District No. 1 et al.)  The Supreme Court opinion is here.

May 15, 2008. The California Supreme Court rules 4-3 that the state must allow equal marriage rights for gays. Blogger.

May 20, 2008.  The Supreme Court upholds the “solicitation and pandering” law passed in 2003 regarding child pornography. Blogger.


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