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