Leonard Link

5th Anniversary of Lawrence v. Texas

In June, we will be marking the fifth anniversary of the U.S. Supreme Court's historic decision in the case of Lawrence v. Texas, in which the Court ruled that states may not use criminal law to penalize consensual adult private homosexual conduct.  The ruling was premised on the Due Process Clause of the 14th Amendment, with the Court finding that the right to engage in such conduct came within the scope of the liberty protected from abridgement without due process of law.  The court construes due process in this context to extend beyond procedural fairness to the idea that government must justify the abridgement of individual liberty.   The more important the liberty at stake, the more justification the government must provide.  In this case, the government's primary justification in the state of Texas, where the legislature had reformed its sodomy law during the 1970s to exempt opposite-sex couples from its operation, was moral disapproval of homosexuality.  The Court found that this was not a sufficient justification, pointing to its prior rulings on point, most notably a decision striking down a provision of the federal food stamp program that was intended to deprive "hippy communes" of eligibility to received federal financial assistance to meet their nutritional needs.

Many organizations around the country are planning events to commemorate this anniversary and provide a venue for discussions about the meaning of the Court's decision and its present and future application.  I am privileged to be participating in one such program, at the New York City Bar Association on Monday, June 2, at 7 pm.  The program is free and open to the public.  My fellow panelists include: Erwin Chemerinsky, a noted constitutional law scholar on the faculty of Duke University who is dean-designate of the new University of California Law School at Irvine; Sharon McGowan, a staff attorney at the ACLU's LGBT & AIDS Rights Projects, who was part of the legal team at Jenner Block that presented the Lawrence case to the Supreme Court as cooperating attorneys with Lambda Legal; and the Honorable Doris Ling-Cohan of the New York State Supreme Court in New York County, author of the trial court opinion in Hernandez v. Robles, which ruled that same-sex couples are entitled to marry in New York.  (This was, unfortunately, reversed on appeal.)  I will be the moderator and lead-off speaker.  We plan to consider Lawrence in historical, academic, practice, and judicial perspective with our diverse panel.  It should be informative and fun.

Excellence at the New York Philharmonic

Tonight's performance at the New York Philharmonic met a standard of excellence rarely attained, but often enough with that orchestra to keep one coming back full of hope.  David Robertson, the guest conductor, put together a varied program: A suite of three Debussy piano etudes arranged for orchestra by Michael Jarrell, Luciano Berio's imaginative "restoration" of three symphonic movements derived from piano sketches left by Schubert at his death for a tenth symphony, and after intermission, Beethoven's 5th Piano Concerto with Emanuel Ax as soloist.

The Debussy-Jarrell suite is a real discovery, and deserves to be added to the active repertory.  After all, we have only a handful of original orchestral compositions by Debussy, one of the great early 20th century masters.  One might not have thought that the etudes, conceived to develop pianistic technique, would lend themselves to orchestration, but Jarrell has done a masterful job of re-imagining this music in an orchestral frame, and it sounds fully idiomatic.  His orchestration also achieves the color of the French impressionists, but I was reminded more of Ravel than Debussy, and particularly the Ravel of the Mother Goose ballet.  I hope this will show up on record, and will grace many more concert programs.  It would have been interesting to hear it played in juxtaposition with one of the shorter original orchestral compositions by Debussy -- perhaps Jeux, or a movement from Images -- but it also made an interesting companion to the next work on the program....

Luciano Berio's imaginative restoration of Schubert.  The program notes ignored the main competition in this field, Brian Newbould's "completion" of a full-length symphony in the style of Schubert, using these sketches as the starting point.  Neville Marriner's recording with the Academy of St. Martin's in the Field chamber orchestra is worth hearing.  Berio took a different tack here.  The sketches are just that, disconnected sketches that do not describe full movements, just bits and pieces of them.  Where Newbould composed music in the style of Schubert to fill the "gaps" and create a continuous symphonic statement in one style, Berio has instead inserted into the "gaps" phantasmagorical connective tissue, ghostly in sound, with bits and pieces of Schubertian motifs, many based on other works Schubert was writing during that final period of his life.  It is as if one were overhearing, at a distance, the Schubertian mind working in indistinct ways for those portions of the piece for which no sketches survive.  As to the sketches themselves, they are fragmentary and at times little more than single lines, needing harmonization, counter-melodies, dynamics, accents.  There are a few indications of instrumentation, but mainly it is in piano score.  Newbould sought to realize the missing elements in the style of late Schubert, the Schubert of the Unfinished and Great C Major symphonies.  Berio, realizing that Schubert never stopped growing as a musician, and that the sketches portend further developments beyond the point of the Great C Major, has realized these additional elements in a forward-looking way.  In the program note, he indicated that he allowed himself to be influenced there by Schubert's immediate successors, such as Mendelssohn.  Thus, even the parts for which sketches exist sound more forward-looking in Berio's restoration than in Newbould's attempted reconstruction.

The piece is fascinating to hear, and Robertson clearly believes in it as a musical statement on its own grounds.  He provided a brief spoken introduction, and Philharmonic pianist Harriet Wingreen played some of the sketches on the piano to illustrate the bareness of what survives and had to be fleshed out in order to be played by a full orchestra.    This was a fascinating adventure to hear, and the performance had much more nuance than the recording I have by Jonathan Nott and the Bamberg Symphony.

Finally, after the intermission, Ax came out to give a sterling account of the "Emperor" Concerto.  This was a performance with plenty of guts in the big moments, but also plenty of lyricism and tenderness when called for.  Ax is visibly engaged in the music at all times, even during the lengthy orchestral passages when the piano is mute, and coordination between Ax and Robertson was close, ensemble was tight. 

This performance confirmed me in my impressions from last week, when I expressed some dissatisfaction with the Philharmonic's first concert with Robertson last Thursday night.  Avoid Thursdays, they are too much like a continuation of the rehearsal process, especially in the kind of crowded week the orchestra had with their pops evenings leading up to Memorial Day weekend.  By Saturday night, a concert program is polished, "played in," the orchestra is fully in tune with the visiting conductor, and an extraordinary result is obtained.

Encores are a rarity at the Philharmonic, but the overhwhelming audience response brought an encore from Ax on Saturday night, a marvelously poetic reading of Chopin's Nocturne in C# Minor, Op. 27, No. 1.  (No, I don't have them memorized; as soon as I got home, I plunged into the book of Chopin Nocturnes to find THE ONE...)  It was a marvelous pendant to a great evening at the symphony.

Savage Grace - warning - plot spoilers

The daily press dumped all over this film, but Stanley Kauffmann's review in The New Republic (cover date June 11) suggested to me that it was worth seeing, and so I went this afternoon.  It was worth seeing, although I agree with Kauffmann that it falls short of what might have been accomplished with this material.

This is the story of the Baekelands, two generations removed from the genius of patriarch Leo Baekeland who invented "bakelite" plastic and generated the family fortune.  The film focuses on his grandson, Brooks, Brooks's wife Barbara, and their son, Antony.  Brooks is a wealthy man without a real occupation, afflicted with wanderlust and a wandering eye.  His glamorous wife Barbara, offended by the wandering eye (and philandering) transfers her affections towards other men, including the gay "walker" (Hugh Dancy) with whom she initiates an affair, who in turn seduces Antony (who is not pure, already having experienced sex with a young Spanish woman who then takes up with his father and a young Spanish man, with whom he settles into cohabitation briefly).  The kicker is when Barbara, after an unsuccessful suicide attempt, focuses her lust on her son, initiates an awkward sexual encounter with him, and he finally snaps -- already being a bit unbalanced - and kills her.  (The movie ends with his arrest, but the onscreen text informs that he ultimately committed suicide while in custody years later for stabbing his grandmother.... perhaps reenacting the crime of stabbing his mother.)

At any rate, there are some pretty unbalanced people depicted here, in a variety of sumptuous New York and European settings, with fabulous furnishings and costumes, and the people themselves are fabulous looking most of the time.  Julianne Moore, who plays Barbara, is incredibly good in the role.  Stephen Dillane, playing Brooks Baekeland, convinces as the dissipated, too-handsome wealthy rogue.  And Eddie Redmayne, who plays the grown-up (late teens/early 20s) Tony, is excellent as well.  I agree with Kauffmann's conclusion that the actors are better than the script they've been given, but I'm trying to understand what the filmmaker was up to here.  Everything just happens, moments that others would milk for drama seem to pass by matter-of-factly.  The whole has the air of a docudrama, a studied attempt to reproduce what happened without doing much to get under the surface of what happened.

The film moves at a rather stately pace at times, and I found my attention wandering once or twice, but on the other hand the performances of the actors are not to be missed, and the setting, the cinematography, the ominous score by Fernando Velazquez... all merit attention.  But the film is disturbing, no more so than the matter of fact way that Barbara molests her attractive son, leading to his bizarre revenge behavior.

Governor Paterson's Same-Sex Marriage Recognition Action

Political hell has broken loose in New York State after the New York Times revealed on Thursday that Governor David Paterson had accepted the recommendation of his legal counsel to send a memo to state agencies calling on them to review their rules and regulations to come into compliance with recent state court rulings holding that same-sex couples who marry in other jurisdictions are entitled to have their marriages "recognized" in New York State.  Republicans and Conservatives are fulminating about lawsuits or legislative action and accusing the governor of taking improper unilateral action.  Stuff and nonsense.

There have now been several rulings by New York State courts, including one unanimous five-judge panel ruling from the 4th Department of the Appellate Division, a relatively conservative bench, all finding that the state government is supposed to recognize such marriages under well-established principles of comity developed by the New York courts over the past century or so.  A lawsuit against the Comptroller for his action in deciding to recognize such marriages for purposes of the state employee benefits program was unsuccessful.  Back during the prior administration, then-Attorney General Spitzer's office issued an opinion letter advising local government authorities that under existing law they could not issue marriage licenses to same sex couples, but predicting that New York courts would require the recognition of same-sex marriages legally contracted elsewhere.  At least one trial court in the state has ruled that a same-sex couple married elsewhere but resident in New York should be entitled to get a divorce here.

In other words, the governor's actions are consistent with the state of the law in New York at the present time.  Although the Court of Appeals has not weighed in, dismissing an appeal of the 4th Department decision as premature because there was no final remedial order in the case yet, it seems unlikely that the Court of Appeals would have a radically different view from those lower state courts that have addressed the issue, because it would require a departure from their own past marriage recognition precedents.  Although New York abolished common law marriage early in the 20th century, and has stricter consanguinity prohibitions and higher age of consent requirements than some other jurisdictions, our government agencies and courts have routinely recognized marriages that could not have been contracted in New York because of these laws. 

The key questions are whether the state has formally adopted a policy prohibiting such recognition, or whether the recognition would be considered abhorrent to us, otherwise the general rule is that marriages lawful where they were celebrated are recognized in New York.  Neither exception applies here.  New York is one of the few states where the legislature has not adopted a so-called mini-DOMA ("Defense of Marriage Act") limiting recognition of out-of-state same-sex marriages, and New York has not amended its constitution to prohibit such marriages.  That the State Assembly voted last year to approve a same-sex marriage bill, that several municipalities and counties have establish domestic partnership registries, and that the state itself provides domestic partnership benefits to many of its employees, suggests that extending legal recognition to same-sex couples in New York could hardly be considered abhorrent -- even if some portion of the polity and their elected representatives opposes letting same-sex couples marry here.

Given the Assembly's action last year, it seems highly unlikely that the Republicans would succeed in passing a mini-DOMA. Given public opinion polls in New York, it seems unlikely that a constitutional amendment would be adopted, and that process takes many years here in any event, at a time when public opinion is continuing to move in favor of allowing same-sex couples to marry.  And a lawsuit trying to stop the governor strikes me as a waste of time.  What is the likelihood that the courts will order the governor to refrain from adopting a policy that many New York courts have already adopted based on their own analysis of the law?  Is a court going to order the governor to refrain from complying with the rule adopted by the courts?  As I said at the outset, stuff and nonsense.

As to the charge that this is some sort of power grab or unilateral action by the governor, that is putting an unfair construction on it, in my view.  From the accounts I've read, the governor approved his counsel's suggestion to inform the state bureaucracy of the legal developments, and order them to figure out what has to be done within their own areas of responsibility to bring themselves into compliance, thus avoiding unnecessary lawsuits and protecting the legitimate interests of New York State residents who have married in good faith in jurisdictions where that is authorized.  This was a prudent step, in light of the costly and wasteful litigation that would ensue as more same-sex couples get married in Canada, California, and perhaps -- depending how things go next door with the Connecticut Supreme Court -- Connecticut!  (If Connecticut ends up allowing same-sex marriage any time soon, the arguments should be over in New York.  Even Republican business interests would have to see the sense of not losing all that wedding business to our immediate neighbor in the NYC metro area.  Ditto if New Jersey acts to allow same-sex marriage next year, as seems possible.)

In any event, the news stories all indicate that the governor was engaged in internal communications within the executive branch and was planning to go public with this sometime in the summer, after all the bureaucrats had responded by the June 30 deadline set in his counsel's memorandum.  And I suspect, given his collaborative nature, that he would have been consulting with the legislative leaders well before that time.  I think somebody leaked the memo and that's why we got premature play in the newspapers.  So Republican charges of bad faith against the governor strike me as political posturing, trying to make an issue in a big election year.

Governor Paterson's action was fully legitimate, within his authority as chief executive of the state to direct the activities of the agencies of the executive branch, and consistent with existing legal precedents.  And, it is no more subversive of democracy than actions taken by Governor Pataki -- such as packing the appellate division benches in New York City with out-of-town judges, a practice that unilaterally subverted the main justification for our elected judiciary system by imposing on New York City residents an appellate bench that became increasingly unresponsive to the needs of city residents over the course of that administration.   And what the Republicans are doing that is subversive of democracy on the marriage issue is persisting in their refusal to take up the bill that was approved in the Assembly and give it a responsible hearing.  Same-sex marriage is coming to New York, one way or another. 

The Republicans in New York State built up some real good will in the LGBT community by finally acceding to passage of the Sexual Orientation Non-Discrimination Act and the Hate Crimes Act.  Well, it's time to step up again.  As any real sexual outlaw will tell you, same-sex marriage is not radical, it's conservative, it's assimilationist, and the Republicans should be embracing it if they truly value "family," not running from it.  The Republicans finally figured this out in Massachusetts, realizing after a few years of same-sex marriages that the state had not been harmed, the total happiness of the public had increased, and it was time to get off the bandwagon and not put the marriage refendum on the ballot.   Let New York Republicans make the same discovery....

August: Osage County - Steppenwolf Drama on Broadway

"August: Osage County," a lengthy (more than three hours) drama by Tracy Letts (winner of the 2008 Pulitzer Prize), is an extraordinary piece of work.  I sat entranced through three acts, totally wrapped up in the travails of the Weston family of Pawhuska, Oklahoma.  I had not been planning on seeing this, not being enticed by the early reviews and descriptions, but a friend was in from out of town and wanted very much to see it, having participated in a reading with his "gay plays group" back home in San Francisco.

Now I'm so glad he suggested it.  Powerhouse performances by the entire large cast, combined with a superbly well-written script by an imaginative author, a magnificently conceived production that originated with Chicago's Steppenwolf Theater Company, well presented at Broadway's venerable "Music Box" theater....  what's not to like.  Sure, it's a downer at times, without a happy ending, but there is plenty of drama and comedy along the way, and such compelling performances should not be missed by any theater enthusiast.  I won't say anything about the plot here - no plot spoilers - apart from indicating that it is a compelling drama of a dysfunctional family from Middle America.  See it!

A Jihad for Love - Documentary on Gay Muslims

"A Jihad for Love," a documentary about the lives of LGBT Muslims, focusing primarily overseas, opened in New York recently, and I paid a visit for a matinee performance at the IFC Center (6th Avenue at 3rd Street) yesterday.  This film by Parvez Sharma sets out to do for gay Muslims what Sandy DuBowski's "Trembling Before God" did for gay orthodox Jews: to open a dialogue on a hidden issue by bringing to light the lives of such individuals, whose presence tends to be publicly denied by religious leaders.

That it accomplishes, but I found the film less engaging than the earlier one.  Is it because as a gay Jew I felt more empathy for the subjects of the earlier film?  Was it because the earlier film was overwhelmingly in English and thus less distancing than the heavily subtitled new one?  Or was it, perhaps, because the film tends towards a slower pace and fewer dramatic confrontations between gay religious followers and religious authority figures?  Hard to tell.  Certainly it is well photographed and the gay interview subjects are quite engaging individuals.  Maybe it is that there is less of a personal voice. Although the film-maker is a gay Muslim, he does not feature himself and his own journey in the film, instead focusing on the experiences of others.  By contrast, DuBowski made his film in significant part the story of his own attempts to reconcile his sexual identity with his religious background, and personalized the story in an interesting way.  This film might be seen as more "objective" than DuBowski's, but that extent perhaps less superficially interesting.

I think this film will be most interesting to closeted gay Muslims looking for evidence of an emerging community of which they can be a part.  (Organizations of gay Muslims are a relatively new phenomenon, but there are already websites and some groups that meet in various places.)  The "out" Muslims who are involved in organization will probably also find the film useful to them as a mechanism to further discussions with religious and political leaders in their communities, just as DuBowski's film has proved useful in breaking down barriers and getting orthodox Jewish authorities to begin speaking publicly about the obligation of their community to be supportive of gay orthodox Jews.  Whether the film will have legs much beyond those groups is speculative.  The word "Jihad" in the title may be off-putting to many, but as a character in the film indicates, the term does not necessarily signify religious warfare, but can properly be used to identify any kind of struggle.

For what it's worth, I thought seeing it was time well spent, as it opens up a view of a world previously little known to me.

The Evolving Same-Sex Marriage Struggle

Events are moving quickly in California.  After the state Supreme Court's historic decision on May 15 in the consolidated Marriage Cases, one of respondent parties, Proposition 22 Legal Defense & Education Fund (the sponsor of the 2000 ballot initiative that the court declared unconstitutional in that decision) moved for rehearing on the issue of remedy, including in its motion the argument that the court should stay its decision until after the November 4 general election, in light of the possibility that an initiative to amend the state constitution to ban same-sex marriages might be on the ballot and might pass.  The court did not respond immediately to the motion, which would be automatically denied if the court does not respond to it by June 16, the date when the marriage decision would automatically go into effect.

Meanwhile, local officials around the state who administer the marriage laws were scrambling to figure out when and how to comply with the court's ruling, a determination complicated by the pending motion and possibility of a stay.  News reports initially indicated that the county clerk in San Diego was ready to start issuing licenses on June 14, a Saturday, but then the state sent an email out to all the county clerks advising them to wait until Tuesday, June 17, in light of the possibility the Supreme Court might stay its decision.  (The court also has the option of announcing a temporary stay while it ponders the motion beyond that date.)  Certainly it seemed likely that in default of any action by the court, same-sex couples could begin getting licenses on June 17.  Since California has no residency requirement for marriage licenses, it was possible that out-of-state couples eager to marry would begin making plans to travel to California.

Political developments were accumulating as well.  While initial polling seemed to confirm the predecisional situation, with a slight majority of the public in California remaining opposed to same-sex marriage, a Field Poll issued toward the end of the month suggested a more fluid situation, showing a bar majority now supporting same-sex marriage.  However, this result was within the published margin of error for the poll, which indicated a high probability that the slight majority against same-sex marriages shown by other polls still existed.  (A friend from California confirmed for me that the Field Poll has a reputation for a slight bias in the Democratic direction, which might explain its variance from prior polls which is, in any event, slight.)  What this means for a November 4 ballot is unclear, since much campaigning by both sides would take place between now and then, major candidates for office would weigh in, and the huge turnouts generated by a hot presidential and congressional campaign would have indeterminate effects.  (Recall 1980, when the Briggs Initiative to ban gay public schoolteachers in the state was predicted likely to pass, but ultimately went down to defeat after popular Republican ex-governor and presidential candidate Ronald Reagan came out in opposition shortly before the election...)

Gloria Allred, the Southern California lawyer who represents lesbian comedian Robin Tyler, lead plaintiff in one of the individual marriage cases that was consolidated into the over In re the Marriage Cases ruling, filed a response to the Prop 22 motion, pointing out that it relied on a chain of speculation - the the amendment initiative would be found qualified for the ballot, that it would pass, that it would survive legal challenge - and noted that what must be weighed against this is the constitutional right declared by the court.  This is quite different from the situation faced by the court in 2004 when it ruled in Lockyer that allowing the San Francisco same-sex marriages of February 2004 to stand pending an ultimate resolution of the underlying constitutional claim would lead to confusion and reliance problems.  In that case, the court had not yet found a constitutional right to be at stake, and it was uncertain how long the question would remain unresolved.  In this case, by contrast, a constitutional right of fundamental importance has been identified, and the question of the constitutional amendment, if it is put on the ballot, may be resolved in a few months.

Not generally known at the time of the California court's May 15 decision, just a day earlier New York Governor David Paterson, reacting to a NY Appellate Division ruling holding that under established NY marriage recognition principles the state would recognize marriages of same-sex couples contracted elsewhere, had instructed state agencies to conform their practices and policies to the decision.  Although the named defendant in the case, Monroe County, whose community college had refused to recognize the Canadian marriage of a lesbian employee to her same-sex partner, had vowed to appeal, the state had not joined in the appeal, and the NY Court of Appeals had dismissed the appeal as premature, because the trial court on remand had not yet entered a final remedial order in the case. Thus, the stage was set for same-sex couples from New York to take advantage of the new California ruling and obtain an "American" same-sex marriage if they did not prefer the less expensive alternative of scooting across the northern border into Canada.  For now, the Canadian route looks more secure, due to the possibility that the California marriage amendment will be on the ballot, pass, and survive judicial review.

One California legal scholar was circulating a memo calling on the state to find the initiative inappropriate for the ballot on the ground that it sought to "revise" the constitution, a goal prohibited by the California initiative process, but a similar argument was recently rejected by an Oregon appeals court evaluating the constitutionality of the marriage amendment passed by voters there a few years ago, and it was uncertain how such an argument would play with the California courts.  Certainly, any attempt by state officials to block the initiative on that basis would be met with a quick lawsuit by the sponsors of the initiative, with Alliance Defense Fund (which represents Prop 22 in the marriage case), strenuously seeking to make sure the initiative appears on the ballot. 

And what else is pending on the marriage front?  Oh, yes, the Connecticut Supreme Court.  New Yorkers thinking about traveling to California or Canada might want to wait to see what the neighboring state of Connecticut ultimately does about marriage.  The issue faced by the Connecticut court is essentially the same that was just decided in California: whether a state's adoption of a "separate but equal" status for same-sex couples meets the constitutional requirements of due process and equal protection.  The case was argued more than a year ago and Connecticut, unlike California, does not place a tight constitutional time limit on its highest court for deciding cases.  The Connecticut court was widely seen as stalling to see what California would do.  Judges like to have precedents rather than going out on a limb to decide questions of first impression.  Now there is a persuasive precedent from California, and perhaps the Connecticut court will conclude its deliberations and issue a decision. So New Yorkers may be able to marry in New Haven instead of Toronto or San Francisco.

Other developments on the horizon: New Jersey activists, spurred on by the situations in New York and California, are liable to be busy on several fronts: urging state officials to revises their view that out-of-state same-sex marriages should be treated as civil unions in New Jersey rather than marriages, which is out-of-step with neighboring New York, and urging the legislature and governor to agree after the elections to address the remaining inequity by opening up equal marriage rights for same-sex couples.  Another jurisdiction now out of step that may see developments is Rhode Island, the only New England state that provides no legal status for same-sex couples.  (Maine has limited domestic partnership; Massachusetts has marriage; Vermont, Connecticut and New Hampshire have civil unions.)  Perhaps the Rhode Island legislature, which has been sitting on a marriage bill, will take some action...

Busy times for same-sex marriage advocates, and hopeful times.   

European Court Supports Britain’s Refusal of Refuge to Ugandan Living With AIDS

The European Court of Human Rights ruled on May 27 in N v. the United Kingdom, Application No. 26565/05, that the United Kingdom’s demand that a Ugandan woman living with AIDS return to her home country does not violate the U.K.’s obligations under the European Convention on Human Rights. According to the Court, the likelihood that the woman would die a painful death within two years of her return to Uganda makes no difference, because at present her medical condition is stable and there is no physical impediment to her traveling to Uganda.

The ruling reflects a narrow interpretation of Article 3 of the Convention, which provides: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." As construed by the European Court, this provision provides protection against deportation for non-citizens only in the most extreme circumstances. The vote of the "grand chamber" of the court was 14-3.

The woman, identified only as "N," entered the U.K. on March 28, 1998, under an "assumed name." She was seriously ill at the time and quickly admitted to a hospital, where she was diagnosed with HIV, "considerable immunosuppression" and tuberculosis. Within days, British attorneys had filed a petition on her behalf seeking asylum, claiming that she was abused and raped by members of the National Resistance Movement in Uganda and that she feared for her life if forced to return to that nation. Within months of her arrival in the U.K., she also developed Kaposi’s sarcoma, the skin cancer emblematic of a full-blown AIDS diagnosis.

Luckily for N, she responded well to the state-of-the-art treatment provided by the U.K.’s public health service, and by 2005, the last date at which medical evidence was introduced in this case, her AIDS-related symptoms had gone into remission and her immune system had rebounded. Nonetheless, the British government was seeking to deport her back to Uganda.

British immigration authorities denied her asylum claim, finding credibility problems with her testimony and concluding that she was not at risk from the Ugandan government. Furthermore, in light of her relatively good state of health, they rejected her claim under Article 3 of the Convention that returning her to Uganda would subject her to "torture or to inhuman or degrading treatment or punishment," or somehow violate her right to privacy and autonomy as guaranteed by Article 8 of the Convention.

N’s attorneys appealed this ruling through the British court system, achieving some success at first but ultimately losing out at the highest level in the Law Committee of the House of Lords. British authorities took the view that under European case law, they were only obligated to provide refuge on medical grounds to somebody who was so grievously ill that it would be inhumane to transport them, or whose condition was such that they were likely to die quickly and painfully if cut off from their treatment in the U.K.

Despite medical testimony that the kind of treatment N needed and was receiving in the U.K. to maintain her current state of health was difficult to obtain in Uganda, and that it was likely that she would relapse to full-blown AIDS and die a painful death within a few years if forced to return there, the Law Committee voted that this did not meet the high standard for relief set by Article 3.

By overwhelming vote, the European Court agreed, quoting with approval lengthy excerpts from the opinions by the British Law Lords. Apparently the European Court has faced a series of cases over the past decade from HIV-positive Africans who have been able to make their way to various European Union countries, where national health systems made available to them the kind of state-of-the-art treatment not easily accessible in their home countries and restored them to relatively good health. The upside of national health systems is that such treatment is available to everybody without charge. The downside is that the government is acutely aware of who is accessing the service and the expenses involved in providing it, and governments seek to deport such expensive "guests" at the first opportunity.

According to the European Court, "It is the Court’s settled case-law that as a matter of well-established international law, and subject to their treaty obligations, including those arising from the Convention, Contracting States have the right to control the entry, residence and removal of aliens." This right to expel aliens is subject to the requirements of the Convention. In this connection, "Article 3 principally applies to prevent a deportation or expulsion where the risk of ill-treatment in the receiving country emanates from intentionally inflicted acts of the public authorities there or from non-State bodies when the authorities are unable to afford the applicant appropriate protection."

In light of these principles, the Court pointed out, its developing law governing the claims of HIV-positive aliens has tried to achieve a balance between the humanitarian concerns embodied in the Convention and the realistic social and economic concerns of the countries that have signed on to the Convention. The Court has distinguished between suffering intentionally inflicted by a government, and suffering for which a government may not be held responsible. The Court has also tried to draw a line, sometimes difficult to discern, between the civil and political rights guaranteed by the Convention, and social and economic rights that are implicated but not directly addressed. Thus, the Convention has not been construed to require governments to provide free health care, even though that is the political norm in much of Europe.

In light of these concerns, wrote the Court in summarizing its approach to the issue, "Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling."

The prime example of such an "exceptional" case, also involving a person with AIDS, had been decided before the introduction of the first generation of protease inhibitors. In that case, D v. the United Kingdom (judgment of 2 May 1997, Reports of Judgment and Decisions 1997-III), the Court had ruled that Article 3 would be violated if the U.K. forcibly returned a man who was literally at death’s door to his home country in Africa. The case of N, who is now stable and reasonably healthy, was clearly distinguishable in the eyes of the Court, so she was totally out of luck.

"The Court accepts that the quality of the applicant’s life, and her life expectancy, would be affected if she were returned to Uganda," the opinion concluded. "The applicant is not, however, at the present time critically ill. The rapidity of the deterioration which she would suffer and the extent to which she would be able to obtain access to medical treatment, support and care, including help from relatives, must involve a certain degree of speculation, particularly in view of the constantly evolving situation as regards treatment of HIV and AIDS worldwide." Thus, the Court found that her deportation to Uganda would not violate Article 3.

Unaccountably, the court decided not to provide any independent analysis of N’s Article 8 claim, baldly asserting, "The Court does not consider that any separate issue arises under Article 8 of the Convention. It is not necessary, therefore, to examine this complaint."

The dissenters argued that the particular circumstances of N’s case, especially the unanimous medical opinions in the record that her return to Uganda would almost inevitably lead to her deterioration and death due to lack of access to adequate treatment, placed her case much closer to the precedent of D v. the United Kingdom than the Court was willing to admit. They also pointed out that the Court’s refusal to evaluate the Article 8 claim was a startling departure from its usual practice of scrutinizing an alternative claim to relief if the principal ground was denied. The dissenters pointed out that the main policy argument made by the British government, that granting relief in such cases would turn the European countries into some sort of medical refuge for the ill of developing countries, was not applicable in this case, because N had not been diagnosed when she fled Uganda, her flight being attributable to fear of persecution rather than a search for medical treatment.

Gayfest NYC 2008 - "Spill the Wine"

The third production of Gayfest NYC 2008 -- seen tonight in a preview performance -- is the drama "Spill the Wine" by Brian Dykstra.  This was very diverting, with witty, penetrating dialogue, and I found the acting superb, despite a few line misreadings that should be polished up by opening night.  More than diverting, it was thought-provoking, about the nature of relationships, the nature of love, the difficulties that people have communicating with each other.  All commonplace themes, but dealt with here in an interesting way.

The actors achieved an excellent ensemble with good timing and believable line readings.  The functional sets served the drama well, and the direction, costuming and lighting all worked together to produce a believable drama, relieved by occasional comic moments.

My compliments to the talented cast: Michael Huston, Chris Kipiniak, Deborah Knox, January LaVoy and Jennifer Merrill, director Margarett Perry, and all those associated with the production.  Most of all to Brian Dykstra for an excellent script.  This one, which will be playing through the weekend, is well worth seeing.

Gayfest NYC 2008: The Wrath of Aphrodite

The second production of Gayfest NYC 2008, a festival of new gay plays, is "The Wrath of Aphrodite," by Tim O'Leary.  O'Leary has taken the ancient mythology surrounding the stories of Theseus, Phaedra, Hippolytus, Adonis (mortals) and Aphrodite and Artemis (gods) and woven them into a two-act drama with a strong gay theme.   The mainly very young cast was beautiful to look at, but less convincing in terms of drama.  Nonetheless, they were all entertaining, and the play itself, despite the intrusive use of modern vernacular at times, is reasonably convincing as drama. 

The performance is staged in the small studio theater, audience close to the actors, a few props and no sets, but it all works somehow.  This production will be repeated this coming weekend.  The performance I attended this past Saturday night was totally sold out.  The small studio theater sharply limits seating.  Inquire ahead of time!