Leonard Link

Gay Former Employee's Retaliation Claim Survives Summary Judgment

U.S. District Judge Richard J. Holwell has denied summary judgment to Gibson Guitar Corporation on a claim by a gay former employee that he was discharged in retaliation for complaining about a co-worker's homophobic mockery of him at a company-sponsored social function.  While rejecting the plaintiff's claim that he was dismissed due to his sexual orientation, Judge Holwell found that there was a jury question sufficient to keep the retaliation claim alive.  Riscili v. Gibson Guitar Corp., 2009 Westlaw 792304 (S.D.N.Y., March 26, 2009).

It is not clear to me why this case is in federal court, since the plaintiff's complaint rests on the NY City Human Rights Law and state common law claims.  He filed his suit in state court, but the defendant removed it to federal court.  Perhaps there is diversity here, but the basis of removal is not discussed in the opinion. 

In a prior ruling, the court had dismissed all of Riscili's claims except his retaliation claim, but Riscili filed an amended claim reasserting the discrimination claim.

According to the court's factual recitation based on the complaint and deposition testimony, Riscili was employed by Baldwin Pianos, his job being to line up situations where Baldwin pianos would be loaned for performances and to musical venues for promotional purposes (exposure to audiences).  In the fall of 2001, Gibson Guitars purchased Baldwin in bankruptcy, and hired Riscili and some other Baldwin employees to work for Gibson, performing essentially the same job functions.  According to his allegations, Riscili's work was appreciated and complimented. 

Then, on April 2, 2003, Riscili was present at a reception sponsored by Gibson to celebrate a movie opening, accompanied by his friend Michael John LaChiusa, misidentified by the court as a "librettist" (actually, he is a musical composer and librettist), also gay and a client of the company.  During the reception, LaChiusa spotted another Gibson employee, Lou Vito, "imitating" Riscili "in a derogatory manner" behind his back while Riscili was engaged in conversation with other guests.  According to a declaration filed in the court by LaChiusa, he "saw directly behind Danny this Vito mimicking with hand movements and facial gestures indicating in no uncertain terms and a derogatory fashion that he was mocking the fact that Danny was gay."  Riscili testified at his deposition that Vito's imitation "was exaggerated and it was very offensive."  LaChiusa was so offended by what he saw that he promptly left the reception, and Riscili also departed quickly.  At work the next day, he told the office manager what had happened, but asked her not to report this to Gibson management because he wanted to work things out directly with Vito.  Nonetheless, the office manager did report the incident to a supervisor, who apparently spread the word through the company.  Although Vito came to Riscili's office to apologize, Riscili felt he was not sincere.

From that date, according to Riscili, things soured for him at Gibson.  He said that people froze him out of what was going on, stopped listening to him, and started becoming critical of his work and making new demands.  For the first time his work was criticized, and management gave him an ultimatum about quickly developing new business.  When he couldn't meet these new targets, which he considered unreasonable, he was fired, and he subsequently filed suit for discrimination and retaliation.

Judge Holwell found that Riscili had adequately alleged facts to support his retaliation claim.   Although the company offered reasons for why Riscili was discharged that might be plausible standing alone, the court found that they were not sufficient to rebut the retalation claim.  Applying the US Supreme Court's recent Title VII ruling in Crawford (129 S.Ct. 846), Holwell found that Riscili's reporting of the incident to the office manager was protected activity and that the non-retaliation provisions would protect him, if indeed he convinced a jury that this complaint was the reason he was fired.  The company argued that because the actual discharge took place four months later, it was not close enough in time to be considered retaliatory for the complaint, but the court noted that Riscili alleged that people's conduct towards him changed immediately, generating a process that ultimately led to his discharge.

However, Holwell reaffirmed the prior ruling that this was just a retaliation case, not a discrimination case.  He found nothing in Riscili's allegations to support the contention that Riscili's own sexual orientation was the reason for the discharge.  The single incident with one co-worker was seen as insufficient.  (Vito, the co-worker was later let go, but then after a hiatus rejoined the company.)   Holwell noted that Riscili was openly gay when hired by Gibson upon its acquisition of Baldwin, was known to be gay by his superiors and co-workers, and had received positive reviews for his work, so it seemed unlikely that his sexual orientation, rather than his complaint about Vito's conduct, was the ultimate cause of the silent treatment, the ultimatums and the discharge.

The opinion shows how anti-retaliation provisions can provide a strong basis for discrimination suits, even in the absence of facts that would support a direct discrimination claim.

Getting Married to My Same-Sex Partner

Most of the time this blog is involved with reporting on legal developments or commenting about cultural events, but I decided to take time out today for a brief personal statement. 

This morning, my partner of 30 years, Tim Nenno, and I were joined in marriage at the Town Hall in Greenwich, CT.  We were taking advantage of this peculiar situation now pertaining in our state of residence - New York.  Same-sex couples cannot GET married in New York (see Hernandez v. Robles and the the failure of the State Senate to get with the program in 2007 after the Assembly passed the marriage bill), but we can BE married in New York (see Martinez v. County of Monroe and Governor David Paterson's directive to state agencies to recognize same-sex marriages lawfully contracted out of state). 

Since the Connecticut Supreme Court (Kerrigan v. State) made it possible to get married within easy commuter rail traffic of New York City, we decided to take advantage of this opportunity in our 30th anniversary month.  And it feels good to be able to refer to my partner of so many years as my "husband" and "spouse."  Somehow it feels more accurate.

And the experience reinforces my commitment to the proposition that true equality is the entitlement of every resident of our country, as the 14th Amendment commands that the states afford to all those living within their boundaries the equal protection of the laws.  Despite the fatuous reasoning of the plurality and concurring opinions in Hernandez v. Robles, I believe that New York State's continued denial of the right to marry to same-sex couples is an egregious violation of our state constitution and of the federal constitution, and that the so-called Defense of Marriage Act passed by Congress in 1996 and shamefully signed into law by President Bill Clinton in the dead of night is an offense against human dignity of the first order.

But I'm not biased!!

Musicians from Ravinia's Steans Institute at Peoples' Symphony Concerts

This afternoon's program at New York's Town Hall sponsored by Peoples' Symphony Concerts brought us musicians from Ravinia's Steans Institute.  Ravinia is home to the summer festival of the Chicago Symphony Orchestra, which maintains a program for young musicians similar to the better-known summer program administered by the Boston Symphony Orchestra at Tanglewood.  Miriam Fried, a distinguished violinist, is the program director.  The "most promising" musicians from each summer's program are formed into chamber music groups and tour with Ms. Fried as their mentor/participant.  She took a part in each piece on this afternoon's program.

Mozart's Trio for Piano, Violin and Cello, K. 502, started the festivities.  Ms. Fried was the violinist, Institute student Michael Nicolas the cellist, and Helen Huang the pianist.  Ms. Huang made her first splash as a child artist years ago when she played and recorded Beethoven with Kurt Masur and the New York Philharmonic.  At the time, the critics praised her accomplishments while suggesting that parading them in the high visibility forum of the New York Philharmonic at Avery Fisher Hall was perhaps premature.  Now Ms. Huang is all grown up, and on the evidence of her performance this afternoon, a very accomplished pianist and chamber music partner.  The Mozart performance was spirited and polished.

Next we had a recent work, commissioned for the Lincoln bicentennial, a piano trio by James Crowley interspersing instrumental movements with a recitation of the Gettysburg Address.  In this case, Ms. Fried was the reciter, and her place in the piano trio was taken by Institute student Robin Scott.  Mr. Scott's playing meshed well with Mr. Nicolas and Ms Huang, but I can't say that I cared for the piece very much.  This was in a modern "tuneless" idiom.  Perhaps on repeated listening it would reveal its charms, but on a first hearing it seemed unduly abstract, considering its intended purpose. 

The first half ended with an expansion of the string ensemble to a string quartet and the exit of pianist Huang.  Ms. Fried took her violin again, playing second fiddle to Mr. Scott, and Institute student Yoonji Kang, a violist, joined the ensemble for Webern's student piece, Langsamer Satz (literally, slow movement).  This is a delicious exercise in late romanticism, infrequently heard but worth being pulled out for frequent exposure.  It shows -- if a demonstration were needed -- that Webern was an accomplished composer in a traditional harmonic idiom before he enlisted in Schoenberg's campaign to abolish traditional tonality.  When I arrived home, I quickly located a recording in my collection by the Emerson Quartet and luxuriated again in the sweet harmonies.

Finally, after intermission, all the string players were joined by another violist, institute student Yura Lee, for Mendelssohn's String Quintet No. 2, Op. 87.  Another spirited rendition, another polished job.  These students play at a high professional level, and their teacher -- who again played second fiddle -- should be quite proud of the excellent program they presented this afternoon.  Those who may have stayed away because it was a "student group" were the losers...

Singing Saturday

Today was my day for song in NYC.  In the afternoon, I attended NY City Center Encores' production of Finian's Rainbow, and in the evening a Schubert lieder recital at Carnegie Hall by Ian Bostridge and Julian Drake.

I've come to love the City Center Encores productions.  They take musical theater pieces of the past and revive them in semi-staged performances.  The orchestra is large and on the stage, the action taking place mainly in front of the orchestra but sometimes on platforms behind or running through the orchestra.  The casts, fully professional with many leading Broadway figures, are in costume.  No fancy sets - props and hangings evoke the settings, and the lack of sets means that "scene changes" are fast.  An attempt is made to restore original orchestrations and to include numbers that may have been cut after early performances.  The cast members frequently carry black binders with their lines and music, but vary as to how often they have to glance at them.  For Finian's Rainbow, it seemed that the leads had pretty much memorized their parts for the first act, but were using their scripts more frequently in the second.  Considering that the entire thing comes together with a short period of intensive rehearsals and they do only a handful of performances clustered around one weekend, one could not expect memorization, especially since many of the shows are rarities that haven't been revived in many decades.  Others, like Finian's Rainbow, may be familiar from the dinner theater, high school and college circuits...

This afternoon's performance was splendid, the leading roles portrayed by Jim Norton (Finian), Kate Baldwin (Sharon), Cheyenne Jackson (Woody), and Jeremy Bob (Og, the leprechaun).  I thought Jeremy Bob rather stole the show with his sheer energy on-stage.  Cheyenne Jackson was a bit laid back and made less of an impression on me than he did last summer with his assumption of the lead role of Joe Hardy in Encores' production of Damn Yankees.  Rob Berman energetically led the orchestra, which seemed to me to be a shade less immaculate than I've heard in the past from Encores orchestras.  The sets and staging were fine.  The show itself has a ridiculous script, but the music of Lane and lyrics of Harburg are fun to hear, and some "old standards" grace the score.  This was certainly an Encores production worth attending.

Bostridge's Schubert is an acquired taste for many.  I first encountered this singer in his first major solo recording, the Schoene Mullerin cycle as part of the Hyperion Schubert lieder edition, which interpolated readings of the poems that Schubert didn't set by Dietrich Fischer-Dieskau.  I could hear the smile in Bostridge's voice in the early songs, gradually disappearing as the singer becomes more despondent, and I fell in love with that high, clear voice deployed with such intelligence and restraint.

I've come to feel that perhaps there is too much restraint...  Tonight's recital, a careful selection and ordering of songs, was bolstered by the excellent, imaginative pianist, Julian Drake, but as for Mr. Bostridge, I wanted more contrast and drama.  I thought he was in excellent voice, and in fact I am finding that he is aging into an even richer, smoother and more mellow vocal sound than he had as a young man -- but I really want a little roughness now and then.  His smooth renditions are soothing, and there is no lack of dynamic variation, but I think the musical values are being exalted over dramatic values to the extent that the songs become less interesting - especially the strophic songs after the initial verses.  From the point of view of musicianship, this was an excellent recital, all first-rate Schubert with three Schubert encores from the top of the all-time-favorites list, but I was left feeling vaguely disappointed.  Going back to the Fischer-Dieskau recordings, one understands immediately.  FD was willing to sound rough at times to make a dramatic point.  Some people accused him of shouting rather than singing at times -- but sometimes the music needs a bit of that to shake things up and bring home a dramatic point. 

I will continue to savor Bostridge's work.  His new recording of Schwanengesang on EMI, with Drake, is excellent, and I've listened to it several times on the iPod now, savoring the sheer beauty of his approach to this music, but I still find that missing element keeping it from the very top of my list...

Commemorating Handel at the NY Philharmonic

George Frideric Handel died 250 years ago, and the New York Philharmonic is marking the anniversary with an all-Handel program this week, actually a few weeks prior to the April 14 anniversary date.  They've brought in --- one might say, squandered --- an early music specialist to lead the program, Nicholas McGegan, and engaged soprano Christine Schafer to sing six arias in Italian from Handel's operas, interspersed with instrumental music.  A large ensemble of strings drawn from the regular body of the orchestra -- I counted 9 first violins, 7 seconds, 6 each of violas and cellos and 4 basses in the purely instrumental works -- shows the size involved.  Not really reduced to a chamber ensemble of the type one might expect if they were using early instruments in a smallish space, but I suppose they were concerned to project a large enough sound for Avery Fisher Hall, which I've often remarked has the acoustic properties of an airplane hangar.

At any rate, rarely have I been quite so bored at a Philharmonic concert.  I enjoy Handel's music in moderate doses.  I don't think an entire program is quite the thing, even with the degree of variety presented here.  We had an opening concerto grosso with a big wind body, then three arias from Partenope, then after intermission, another concerto grosso for smaller forces, three more arias (two from Alcina and one from Giulio Cesare), and finally the Royal Fireworks Music with a large wind complement.

The first problem for me was that McGegan did nothing to simulate period practice as far as I could hear.  This sounded to me much like the Handel recordings that Neville Marriner and the Academy of St. Martin in the Fields were making back in the 1960s.  Big, thick luscious sound, plenty of continuous vibrato in the strings, moderate tempi most of the time with beautifully rounded corners and legato phrasing, etc.  All very beautiful, but all too often lacking in the interesting nuances, sonic hairpins, and rhythmic spring we've come to expect from performances of music of this period by early music ensembles.  And, of course, the modern woodwind and brass instruments just emphasize the big, thick sound even more.

Can one achieve some semblance of period performance with modern instruments and a string body this large?  Yes.  I've heard Norrington accomplish this with the Orchestra of St. Luke's (well, perhaps with a slightly smaller string body, and in Carnegie Hall rather than Avery Fisher, so he didn't have to press so hard to make a big enough sound).  One key element is to get the string players to lay off the continuous vibrato, which is not appropriate for mid-18th century music.  Another is to get them to lighten up their bow action.  No need to dig in quite so ferociously, as the Philharmonic strings are accustomed to doing.  And then the faster movements should be played with a little more forward momentum, and every attempt should be made to get some interesting articulation going in the accompaniments so as not to fall into a monotonous "chugging" sound as things move forward with too comfortable a trotting pace.

Perhaps these performances were intended to evoke nostalgia for the way 18th century music was normally played by symphony orchestras before the early music movement got hold of it during the last quarter of the 20th century....  But there were the same problems that I and others detected with Mr. Maazel's project to do the Brandenburg Concerti of Bach with the Philharmonic during the course of the season.  

This is not to fault the concert I heard tonight on purely technical grounds of ensemble, intonation, etc.  Just to say that the NYP sounded to me like an oversize school of fish out of water, to mix metaphors terribly.  And, given McGegan's credentials -- including lots of Handel recordings with period instruments -- I was rather surprised that he appears not to have made the attempt to reign in the s.o.p. of the NYP strings to try to approach more closely an awareness of period style in the music.  One might as well have had Maazel lead the program...

As for the singing, I enjoyed Christine Schafer's voice, but I was not crazy about the idea of hearing arias out of context like this.  Things might have been more interesting had they engaged another singer or two and presented a complete scene or two...  Another opportunity lost. 

But I shouldn't be complaining too bitterly.  After all, it is unfortunate that the advent of the early music movement has generally led symphony orchestras to retreat from presenting 18th century music from their regular concerts.   Part of the reasoning may just be prudence.  The current fashion is to hear these works played in something closer to our current understanding of period style, and to refrain from imposing on them the conventions of late 19th century romantic orchestra sound that typify our modern orchestras most of the time.  On the other hand, Norrington and others have shown that with a properly-sized ensemble, one can present idiomatic interpretations of 18th century music in the context of a symphony orchestra concert.  It just takes a lot more preparatory work to do it right!

HIV Issues Push the Boundaries of Tort Law - Idaho Supreme Court

A decision announced by the Idaho Supreme Court on March 5, 2009, Cramer v. Slater, 2009 Westlaw 540706, required the court to explore interesting issues of causation and liability in the context of a failure by a health care provider to accurately communicate the result of HIV testing.  There have been quite a few cases where individuals who were told that they were HIV+ when in fact they were not have sought damages for emotional distress, and courts are divided about whether to award such damages where the emotional distress does not accompany a physical injury.  This case presents a curious twist on the issue, raising important torts policy questions.

In this case, one of the defendants, Idaho Center for Reproductive Medicine, is being sued in connection with the apparent suicide of an HIV+ man who was told by ICRM that he was not infected with HIV, only to discover more than a year later that he was infected.

The Cramers, a married couple, went to ICRM seeking in vitro fertilization, as Mrs. Cramer had proved unable to conceive through normal sexual intercourse.  Both of them submitted to HIV testing as part of that process, and were told that they were negative.  The in vitro failed, however.  A year later, Mr. Cramer applied for a life insurance policy, for which HIV testing was required.  The insurance company told him to contact his doctor for the results, and he was informed by his doctor that he had tested positive and should be tested again to determine whether it was a false positive.  He was informed "that negative test results are returned within a couple of days, but that positive rest results would take longer to report."  Three days after having his blood drawn, Mr. Cramer called the doctor's office and was told they did not have a test result yet.   Mr. Cramer failed to return home or to work.  Two days later, his body was found at the base of a cliff, and the coroner's office classified his death as a suicide. 

Mrs. Cramer sued various individuals and institutions, but the most interesting aspect of the case from the point of view of tort law is her suit against ICRM.   It turns out that Mr. Cramer had been inaccurately told that he was negative for HIV when he and his wife went for the in vitro services.  Mrs. Cramer now seeks to hold ICRM at least partially liable for the wrongful death of her husband, with resulting financial loss and emotional distress, on a theory that had he been correctly diagnosed and informed at that time, he would have been directed to counseling and treatment.   Another part of her theory of liability is that Cramer's own doctor was negligent in handling the situation, which contributed to the mental disturbance resulting in Mr. Cramer's suicide.  Had ICRM correctly diagnosed and informed Mr. Cramer, he would not have been subjected to the subsequent negligence of his own doctor.  ICRM, of course, argued that it had not caused any harm to Mr. Cramer and, in any event, that the effect of its own negligence, if any, was too attenuated to place liability on it for the subsequent suicide.  In the language of torts law, ICRM argued that its conduct was not the "proximate cause" of Cramer's suicide. 

There were additional complications.  Traditional tort concepts may excuse a negligent actor from liability where the immediate cause of an injury can be attributed to an intervening force that is unforeseeable, and the argument was made that suicide is an intentional act whose commission should break the chain of causation and relieve ICRM of liability.

The trial judge found Mrs. Carmer's liability theory too much of a stretch, and granted summary judgment to ICRM.  The case did proceed against Mr. Cramer's own doctor, and the jury found negligence and awarded some damages for economic loss (but not, surprisingly, for Mrs. Cramer's emotional distress).

The Idaho Supreme Court unanimously reverses.  It finds that under modern tort theories articulated in the Restatement 2nd of Torts, Sec. 457, it can be argued that the subsequent negligence of Mr. Cramer's doctor should be considered a foreseeable consequence of ICRM's own negligence, and that the intervening action of the suicide would not necessarily cut off liability but rather would be a factor to take into account in apportioning liability in light of modern concepts of comparative fault.  (That is, when an injury is attributable to many different factors, including the negligence or voluntary acts of a victim, the modern policy is to apportion responsibility for the injury among the various causative factors, and hold any given defendant liable for a proportionate share of the damages.)

The Supreme Court was also critical of the special verdict sheet and results returned by the jury, finding irreconcilable disparities which may reflect erroneous jury instructions.

A new trial is necessary now, for a jury to determine whether ICRM was negligent and how much its responsibility will be in terms of damages if it is found to be negligent.  Furthermore, the new trial will need to reopen the issue of whether Mrs. Cramer should also receive damages for her emotional distress, in light of the complexities of charging the jury and seeking a special verdict that yielded the erroneous result in the first trial.

Musical Weekend Contrasts - Orpheus at Carnegie Hall; ASO at Avery Fisher

This was a weekend of contrasting events.  On Saturday night, I attended the Orpheus Chamber Orchestra concert at Carnegie Hall, hearing a varied program of Haydn, Piazzolla, Melinda Wagner, and Stravinsky.  On Sunday afternoon, it was the American Symphony Orchestra at Lincoln Center's Avery Fisher Hall, for a program centered around the music of William Grant Still.  It would be difficult to find two more contrasting programs.

Orpheus famously performs without a conductor, although in solo works they may give their soloist the role of leader.  Yesterday night, Nadja Salerno-Sonnenberg, the ultra-expressive violinist, was soloist and leader in Astor Piazzolla's Four Seasons of Buenos Aires, a series of four concertante movements, heard here in an arrangement for solo violin and string orchestra by Leonid Desyatnikov.  This was perfect music for Salerno-Sonnenberg, who likes to lose herself so totally in the music that she is practically dancing.  Since Piazzolla's music always incorporates tango rhythms, she had the right music for dancing!  The piece finds a variety of moods in the common dance rhythms, and is very inventive.  Desyatnikov's arrangement mixes percussive effects from the strings with the most suave romanticism.  It was all great fun.

This came after a spritely performance of Haydn's early "Morning" Symphony, number 6 in the published order, and occasionally presented as part of a trilogy with his Noontime Symphony and his Evening Symphony, but standing well enough alone.  Of course Orpheus is a modern instrument ensemble, and the harpsichord continuo seemed superfluous.  From the balcony, it could not be heard most of the time.  But that's no mind, because the textures in this work are full enough to stand without it.

After intermission, we had one in a series that Orpheus has commissioned from contemporary composers to be inspired by J.S. Bach's Brandenburg Concertos.  Wagner took the 4th Brandenburg as her model, scoring for two solo flutes, solo violin and string orchestra.  There were some explicit references to the Bach original, and but most of the piece was devoted to inventive riffs taking off from the Bach.  I found it enjoyable but not necessarily memorable.

Finally, there was the suite that Stravinsky drew from his ballet for orchestra with voices, Pulcinella.  The suite removes the vocal movements and tightens up everything else, expanding the orchestration for full orchestra.  I had an interesting point of comparison here, because I heard Pierre Boulez perform this with a chamber-size ensemble from the Chicago Symphony Orchestra in Carnegie Hall very recently.  Would the conductorless Orpheus score over the CSO players with their esteemed guest conductor?  The comparison wasn't exactly even, since Boulez/CSO presented the piece entire with voices.

I concluded that the suite is more enjoyable.  The full ballet has its padding and was intended by Stravinsky to be part of a theatrical production with dancing, costumes and sets.  The suite works better for concert performance, extracting the music that stands well enough on its own without any padding.  That said, Boulez drew a more sharply defined performance from his ensemble, while Orpheus tended to round off corners and provide a more relaxed approach.  Either works well, but I thought the Boulez/CSO performance was, on balance, better.

This afternoon, I had the rare opportunity to hear three (3) orchestral works by William Grant Still on one program.  Is this, in itself, an unprecedented event?  Still (1895-1978) achieved the distinction of being the first African-American composer to have a symphony of his composition performed by a major professional American orchestra.  He actually wrote several symphonies, and it was his second, first performed in 1937 by Leopold Stokowski and the Philadelphia Orchestra, that Leon Botstein selected to close this program, which was titled "Revisiting William Grant Still."   The puzzle Botstein poses in the program book is why a composer of such obvious talent and accomplishment has been largely neglected by the classical music world.  His longevity and significant output of orchestral music -- all of it relatively user-friendly -- would have argued for frequent performances of his work by major orchestras.  Botstein suggests that this did not happen for a variety of reasons, not least the stereotypes of black musicians carried by white musicians, and the composer's musical and political conservatism at a time when the tastemakers in classical music had moved on to more "advanced" harmonic experiments.

The program opened with an early work of George Whitefield Chadwick (1854-1931), briefly a teacher of Still.  Chadwick's Rip Van Winkle Overture is not representative of his best work -- the Symphonic Sketches -- and I thought that this well-made piece really lacked inspiration.  An overture without a few really good tunes might as well be left on the shelf.  This was followed by early Still, "Darker America," a symphonic poem of 1924 in which the young composer was trying to show how "up to date" he was by writing abstruse stuff.  I didn't much care for it, and I think neither did he, because the later works on the program had all eschewed this style for something much more popular.

For example, Still's orchestral suite, "Africa," next up on the program.  Written in 1928.  Three movements trying to capture in sound the composer's idealized vision of the dark continent.  Land of Peace.  Land of Romance.  Land of Superstition.  Prominent percussion.  Colorful orchestration.  Catchy rhythms, but less than truly memorable themes, unfortunately,  This piece, however, was a major advance over "Darker America."

After intermission, we heard from another of Still's teachers, Edgard Varese, who was a truly eccentric avant-gardist.  We heard "Ofrandes," a short cycle of two songs for a chambe ensemble heavy on brass and percussion.  There was lots of noise.  The verses he set were rather obscure in meaning.  Mezzo-soprano Jennifer Rivera was given a hopeless task of combatting the racket-producing ensemble.  But the pieces were fascinating to hear, and it is also fascinating to speculate about what kind of influence Varese could have had on Still, since the last piece on the program sounded so little like it.

Symphony No. 2 is subtitle "Song of a New Race."  One hears all kinds of influences in it.  The style struck me as very much like the genre now known as British light music, but without the British accent.  Indeed, again and again I was struck by how much this sounded like the Gershwin of Porgy & Bess, albeit with more lush orchestration.  Had Gershwin attempted an actual symphony in four movements, perhaps this is what it would have sounded like.  The similarities are uncanny.  Since this piece was bound for Stokowski and Philadelphia, Still wrote something to emphasize the particular qualities of that team, and the result is the most lush kind of writing for string orchestra one could imagine.  It was easy to just sit back and luxuriate in that sound.  I was amazed that the ASO was able to produce it so well, given their somewhat smaller string section than one hears from the "major" symphony orchestra.  And, I imagined what this might sound like under Gustavo Dudamel and his Simon Bolivar orchestra, which customarily uses almost twice as many string players as the standard symphony orchestra.  The result would be absolutely stunning.

So - the verdict on Still after hearing this concert?  An interesting composer who definitely developed over time, and whose music should probably show up a bit more often on regular orchestra subscription programs.  He would provide a great antidote to the complaint that there is not enough American music in the repertory of our orchestras, because he provides music that people will want to listen to more than once.

Ohio Appeals Court Strikes Loitering Ordinance

What is most interesting about the Ohio Court of Appeals (5th District) decision from March 16 in City of Alliance v. Carbone (2009 Westlaw 690408, 2009-Ohio-1197) is perhaps not so much the clearly correct holding, but more what it reveals about police practices in the ages-old "cat and mouse" game between vice cops and gay men.

According to Judge Delaney's opinion for the unanimous court, the case arose out of a "sting operation" in the restroom area of Butler-Rodman Park in the city of Alliance, Ohio.  Delaney relates at the beginning of the opinion that "the operation was a result of several complaints of lewd activity in the restrooms and trails behind the restrooms at the park," but later in the opinion, there are quotations from testimony by the arresting undercover officer that would support an inference that the police decided to crack down on a local site that was listed as a hot cruising spot on the website cruisingforsex.com.  Indeed, there are occasional stories from around the country revealing that local police departments monitor that website and from time to time undertake "sting operations" there, attempting to entrap gay men.  Are there really "complaints" from the public?  The police always say so, but how likely is that.

In this case, the facts are fairly outrageous.  Mark Carbone, a local businessmen, drove over to the park in the middle of the day.  As he drove towards the restroom, he nodded to a good looking man sitting in a parked car.  (Our undercover cop, of course.)  As he approached the restroom, slowing park, he pumped his brakes a few time.  At the trial, the cop testified that this brake-pumping had been identified on cruisingforsex.com as the method of communicating an interest in meeting whilst cruising by car.  So the cop gets out of his car and goes into the restroom.  A few minutes later, Carbone enters, goes to a stall and relieves himself.  After he left the stall, there was some conversation between the men.  Carbone asked "what's going on?"  The cop said "nothing much."  They walked out together, with the cop asking "are you looking to get together," and Carbone hesitated briefly, then said "sure."  The cop asked, "Here in a restroom or would you like to go into the woods."  Carbone said, "no, it's too risky," and suggested going to his place of business instead.  The cop offered to follow Carbone in his car, Carbone gave directions, and then the cop identified himself and arrested Carbone for "disorderly conduct" for "loitering in or near a toilet building."

Well, from that fact recitation, taken faithfully from the court's opinion, I'd say the cop was loitering first, I'd say Carbone was suitably respectful, cautious, and not in any way disorderly in his conduct, and that if there was any solicitation going on, the cop was initiating it as much as Carbone.  Furthermore, there was no overt sexual activity in the public restroom, merely an invitation to go to a private place for same, and no discussion of any activity not protected by the constitution.  (And, of course, Ohio does not have a criminal sodomy law....)

A trial judge rejected Carbone's motion to dismiss the prosecution, and he appealed his conviction.  The court unanimously reversed, finding the statute vague and overbroad on its face, and thus unconstitutional.  Delaney wrote that the court found the statute "vague on its face because it does not give people of ordinary intelligence reasonable notice to know what conduct is prohibited."  Overbreadth was also apparent, given the broad concept of "loitering" shown by the vice cop's testimony, since it was clear that the statute could be applied to a broad range of conduct protected by Supreme Court precedents under the Due Process Clause and the 1st Amendment.  

As noted above, the real interest in this case is probably in surfacing further evidence that police departments monitor cruisingforsex.com and then carry out "sting operations" to trap unsuspecting gay men who show up looking for a hook-up.   

NY Philharmonic, Mehta, PercaDu Play Dorman's Concerto

Israeli composer Avner Dorman, inspired by his percussion-playing friends, Tomer Yariv and Adi Morag, wrote a big concerto for percussion duo and orchestra titled "Spices, Perfume, Toxins!" which was premiered with Zubin Mehta and the Israel Philharmonic in 2006.  This week they brought the piece to the New York Philharmonic, where ex-music director Mehta was guest-conducting for the week. These performances marked the U.S. premiere, the piece having also had some outings in various European music centers.  The other scheduled work on the program, a good match, was Bela Bartok's Concerto for Orchestra.

Prior to the performance, Dorman appeared on stage with "host" composer Steven Stucky, for a short, relatively non-substantive interview - just enough to introduce the composer to the audience and point out briefly some of the musical influences that went into the concerto. 

The piece itself is very listener-friendly, mixing pop and classical idioms, presenting nothing that would be offense to conservative symphony-concert ears -- and therein was my only real problem with it.  I thought Dorman could have done more to challenge listeners.  My reaction to it was "pleasant" and perhaps a bit over-extended, since he takes minimalism as one of his influences so there is lots of repetition.  In addition, the orchestra is quite overwhelmed and masked some of the time by the huge array of percussion instruments assembled in front of the stage and energetically played by PercaDu, as Yariv and Morag have named their duo.  They received a standing ovation at the end -- NYP audiences love to be charmed and thrilled by displays of virtuosity, which they got on this occasion -- but I think it would pay Mr. Dorman's time to revise his piece after having had a series of successful premieres with it in various places over the past three years. 

I would tighten each movement a bit and introduce more variety into the percussion parts, thinning them out at times to bring the orchestra more into the picture so it is more of a real concerto rather than a percussion piece with obligato orchestra in the background.  With all those interesting instruments on the stage, I thought his use of them was rather conservative, with extended emphasis on the marimbas.  I think he could figure out ways to spice it up more, and if he needed advice on that, he could consult Dame Evelyn Glennie!!!  The raw material of a terrific piece is there, but I think it could stand more work.  There is no shame in that.  For one example, Sibelius withdrew his violin concerto after the first round of performances and did major surgery on it.  Same thing with Vaughan Williams' Symphony No. 2, which underwent major cuts before the composer's final version was released.  Indeed, there exist recordings of the VW symphony reflecting several different stages of the work's evolution.  Brahms was another who did much revising after initial public performances, and Mahler was yet another....  Indeed, Mahler revised after publication, leaving a quandary for conductors about the correct performing order of the middle movements of his 6th Symphony.

After the concerto, the PercaDu members played a brief encore, which began as an arrangement for percussion of the first of Bartok's Roumanian Folk Dances, and then morphed into an extended riff on an Israeli folk song.  This provided a nice bridge to the second half of the program.

I arrived in NYC the year Zubin Mehta took over as music director of the NYP.  I had great expectations, being familiar with his work from some wonderful recordings he had made with the LA and Vienna Philharmonics and having seen a few TV concerts.  But in the event I was let down.  I thought Mehta hit an uninteresting patch in New York, and I found his conducting rather prosaic much of the time, with occasional flashes of brilliance in Bruckner Symphonies and Strauss tone poems.  But since leaving NY, he has returned occasionally as a guest conductor, and I have usually found those outings really enjoyable.  (Perhaps the pressures of being music director inhibited him in some way; as a guest he is freer to do his own thing....)  I thought his Bartok Concerto for Orchestra was very fine.  Not the most exciting I've heard, but extremely well played, especially the humor of the 4th movement, which is for me the most interesting and beautiful movement in the 5-movement piece.

Afterwards, I was privileged to attend the orchestra's annual Heritage Society luncheon, at which Stanley Drucker, principal clarinetist who is retiring at the end of this season after 60 years with the orchestra (some kind of world record, I'm sure -- he was hired as second clarinetist at age 19 during the period when Bruno Walter was an interim music director), made a brief speech listing the highlights of his career with the orchestra.  Heritage Society is a good deal.  If you have made plans to leave money to the NYP in your estate plan, you can sign up as a member, get a neat pin, and be invited to occasional events.  The event is usually a concert in the orchestra's Friday matinee series followed by a luncheon, with some members of the orchestra participating.  Good fun, and a chance to meet some orchestra members.

A Spurious Defense of Sodomy Laws in the Former British Colonies

In defending their penal sodomy laws against challenges by Human Rights groups and in their courts, many former British colonies claim that the sodomy laws are part of their indigenous culture, and that attempts to force them to repeal the laws in the name of international human rights standards (most particularly the Universal Declaration of Human Rights) is, in effect, intolerant of indigenous cultures.

Human Rights Watch has shown this argument to be totally spurious, in a detailed historical report that is summarized by Scott Long, director of the LGBT Rights Program of Human Rights Watch, in the March 1, 2009, issue of the Gay & Lesbian Review.  The article has just become available on Westlaw: 2009 WLNR 4901774. 

It seems that these sodomy laws in former British colonies mainly derive from the model Indian Penal Code, which was drafted and imposed by British colonial rules in 1860.   Versions of that code were then introduced in other colonies, using virtually identical language. Writes Long, "In this way, British colonists imposed a single sexual code -- that of Victorian England -- upon all their colonized peoples.  Although the language of those codes may have evolved over time with the independence of colonies and the recodification of colonial era law by the new governments, nonetheless the source for these sodomy laws, in over three dozen countries (according to Human Rights Watch), is the colonial era British law.

A case is pending before the Constitutional Court of India, challenging the classic predecessor of all these colonial sodomy laws, Section 377 of the Indian Penal Code.  To its shame (as a signatory to the UN Charter and presumably an adherent of the Universal Declaration), the Indian government continues to defend its sodomy law as an authentic expression of indigenous culture, even as it is dramatically shown by Human Rights Watch that it is not, that there is no historical support for the argument that criminal treatment of homosexuality predates British colonial rule. 

The irony, of course, is that the United Kingdom itself abandoned its criminal sodomy laws in a spurt of late 20th century reform, begin with a substantial ameliatory revision of the British code in 1967 and subsequent actions throughout the United Kingdom.  The European Court of Human Rights has taken the position that sodomy laws violate the European Convention on Human Rights, in a 1981 case involving Northern Ireland.  The UN Human Rights Committee has taken the position that sodomy laws are inconsistent with the International Covenant on Civil and Political Rights, dating back now to 1994.

It is time now for the former colonies of the UK to disavow this remaining blot on their statute books, and one hopes that the high court in India will lead the way.