New York’s police and prosecutors should not be permitted to introduce condoms as evidence of prostitution and prostitution-related offenses, according to the students who work in Columbia’s Sexuality and Gender Law Clinic.  The Clinic held a tabling day yesterday at Columbia Law School in support of a New York State bill that would enact this prohibition into law.  Over 50 Columbia Law students signed postcards to legislators to support the bill, sending a strong message to legislators that sound public health policy militates against the use of condoms as evidence of prostitution.

Under current law, police and prosecutors can and do use condoms to prove prostitution and related offenses, such as patronizing a prostitute, promoting prostitution, and maintaining a premises for prostitution.  The bill is critical to protecting public health in New York and deterring police officers from using condoms as pretextual justification for arbitrary search and seizure.  Criminalization of condom possession directly conflicts with New York’s longstanding public policy of encouraging condom use, a policy it has effected in part by distributing free condoms since 1971.  The proposed bill, which is in committee in the Senate and on the floor of the Assembly, would prohibit the use of those and other condoms in seven enumerated prostitution-related crimes.  Law enforcement officials would still be able to use condoms as evidence in rape and sexual assault cases, as they would in any other type of case not named in the bill.

The Clinic became aware of law enforcement’s use of condoms as evidence of prostitution during the course of its collaboration with community-based advocacy organizations in New York City, including the Sex Workers Project (SWP) at the Urban Justice Center.  The SWP is spearheading the effort to pass the bill.  The Urban Justice Center and the Center for Constitutional Rights have written legislative memos supporting the bill; the SWP has also organized an online petition to gather signatures to legislators.

Sarah Morris, SJ Lee, and Rena Stern, Sexuality & Gender Law Clinic students, are  in charge of the project.

The New York Court of Appeals ruled today that the Westchester County Executive and the New York State Department of Civil Service were within their legal powers when they issued orders requiring relevant public officials to

recognize same sex marriages lawfully entered into outside the State of New York in the same manner as they currently recognize opposite sex marriages for the purposes of extending and administering all rights and benefits belonging to these couples, to the maximum extent allowed by law.

The Alliance Defense Fund of Scottsdale, Arizona, a conservative legal group opposed to marriage equality rights for same-sex couples, brought this lawsuit, finding local New York plaintiffs to challenge the recognition of out of state marriages of same-sex couples.

The legal issue here is called one of comity or reciprocity – the principle that one jurisdiction will extend certain courtesies to other states, particularly by recognizing the validity and effect of their executive, legislative, and judicial acts.  Except in some very narrow exceptions, New York has a well-settled marriage recognition rule, which “recognizes as valid a marriage considered valid in the place where celebrated.”

It is important to appreciate why this ruling is so important.  The New York Times portrays the Court’s decision as narrowly written and applied to a small number of people, but it’s meaning is more profound if read in light of what the Court was asked, and refused, to do.  Had the plaintiffs won the case, they could have done so (as the concurrence to today’s opinion points out) by analogizing out-of-state marriages of same-sex couples to incestuous marriages.  The Alliance Defense Fund argued that this case fell within an exception to the marriage recognition rule for matters of public policy, such as for incestuous marriages entered into in other states that allow such marriages.   The analogy – that marriages of same sex couples violates New York public policy just as incestuous marriages do – is not an unfamiliar one made by opponents of marriage equality rights for lesbian and gay couples, and is deeply offensive to the advocates of marriage equality for lesbian and gay people.

That the Court rejected the public policy argument here is significant.   The Court could have said that the matter is one for the legislature, not for the Court – as it did when it rejected the constitutional challenge to the exclusion of same-sex couples from legal marriage in Hernandez v. Robles in 2006.   This is an important point: To grant the plaintiffs’ public policy argument would be to hold that the New York State Legislature’s failure to pass a marriage equality bill amounted to a repudiation of marriages by same sex couples elsewhere, full stop.  But legislative inaction/silence cannot and should not be given such strong judgmental meaning.   The fact that the Court held in Hernandez that these marriages are not constitutionally required does not foreclose a range of executive and legislative action to incrementally recognize the spousal-like character of lesbian and gay relationships.

One last point: Sasha Samberg-Champion, the lawyer who represented the State in the case is an Assistant Solicitor General in the Office of the New York State Attorney General, and a 1985 graduate of Columbia Law School with whom I worked on his excellent Note: Sasha Samberg-Champion, How to Read Gonzaga: Laying the Seeds of a Coherent Section 1983 Jurisprudence, 103 Colum L Rev 1838, 1839 (2003).

The New York Court of Appeals is currently weighing issues of critical importance to families around the state of New York in the matter of Debra H. v. Janice R. The petitioner in the case, Debra H., seeks to prevent the possibility that she may never again see the child she parented since birth.  Respondent, her former partner and biological mother of the child, claims that Debra H. has no legal rights as a parent.  This week, Columbia Law School’s Sexuality and Gender Law Clinic  filed an amicus brief with the New York Court of Appeals on behalf of forty-five family law scholars from every law school in New York State.  The brief was written by Professors Suzanne Goldberg and Ariela Dubler together with Clinic students Harriet Antczak, Mark Musico and Seung-Jae Lee, and urges the Court to bring the State into line with the clear trend in family law by recognizing important functional parent-child relationships.

Given the reality of today’s families, in which children are increasingly parented by adults other than their biological parents, Debra H. is not the only mother with a vital interest in this case.  Rather, at stake are the rights of all “functional parents” like Debra H. and the best interests of their children.

Currently, New York treats functional parents as “legal strangers” to their children, due to the 1991 Court of Appeals case, Alison D. v. Virginia M. There, a lesbian couple planned to have a child together, but when the couple separated, the biological mother attempted to cut off all contact between her former partner and the child.  Ruling on the former partner’s suit for visitation, the Court held that she had no legal rights as a parent.  Because she had no biological or adoptive relationship to the child, the Court found she did not meet its narrow reading of “parent” within the state visitation law.

Mounting evidence shows the harm caused when courts separate children from their functional parents, as in the Alison D. case and many other post-Alison D. cases in which courts have continued to treat functional parents as though they are unrelated to the children they have been parenting.

Taking account of this evidence and the changing realities of the American family, scholars and courts around the country have rejected the rigid conception of the family embraced in 1991 by New York’s high court.  They recognize that only a functional approach can adequately protect the many families in which children are raised by adults who have functional, but not legal or biological, ties to them.

Drawing on the wide consensus among scholars and many courts, the Clinic’s amicus brief calls on the Court to grant functional parents the same rights and responsibilities as legal parents at the point of family dissolution.  As the brief argues, “[t]his functional approach best serves the interests of New York’s children, consistent with New York’s family law jurisprudence and this Court’s equitable authority.”

Specifically, the brief shows two key criteria New York courts should consider in assessing claims to parental status made by functional parents.  First is that the legal parent must consent to the functional parent’s assumption of parental responsibility for the child.  Second, the functional parent actually has to have intended to and assumed parental responsibility.  In addition, courts can consider the parent-child bond between the functional parent and the child.  The brief highlights agreement among courts and scholars that these criteria for defining functional parenthood not only fairly assess claims by functional parents, but also protect the interests of legal parents and serve the best interests of children.

Importantly, the forty-five law school faculty members – hailing from all fifteen of New York’s law schools – demonstrate the best judgment of the legal academics who teach, write about, and practice family law, including many who have particular expertise in child advocacy and scholarship related to the best interests of children.  Their support is a powerful statement to the Court that the time has come to replace the harmful formalistic rule of Alison D. with a functional approach to defining the legal family.

The Supreme Court of Puerto Rico is currently considering whether Puerto Rico’s laws permit the adoption of a child by a non-biological parent who is the same-sex partner of the child’s legally recognized parent.  Such adoptions are typically referred to as “second-parent” adoptions because they occur in situations where the child already has a legally recognized relationship with one (usually biological) parent and the adoption provides the same recognition to an additional parent.  Most U.S. states already allow second-parent adoptions by a same-sex partner, but so far, Puerto Rico does not.

This case, In the matter of AAR, involves two women in a committed relationship who have co-parented a child from birth.  While not contesting that the non-biological mother has functioned in every important respect as the child’s parent, the lower courts have applied a narrow reading of Puerto Rico’s adoption statute and denied her petition, saying second-parent adoption is available only to opposite sex partners.

Significantly, the courts have not inquired as to the best interests of the child in question.  This is unfortunate both because this is standard for adoption decisions in Puerto Rico (and most jurisdictions) and because second-parent adoption is critically important to the children of same-sex couples.   As in most cases, granting the adoption in this case would merely formalize a parental relationship that already exists in fact.  This legal recognition is psychologically significant to children with same-sex parents as an indication of their families’ equal dignity and legitimacy.  Adoption is also of great practical value because of the many rights and privileges that attach to the parent-child relationship.  These practical considerations include custody, inheritance, financial support, medical decision-making, and many other legal protections.  In light of these considerations, second-parent adoption is clearly in the best interests of children being raised by same-sex parents.

On Thursday, November 12, 2009, the Sexuality and Gender Clinic offered its expertise to the Puerto Rican Supreme Court by filing an amicus brief in order to ensure that the most current developments in international and comparative law related to sexual orientation, gender, and family law were made available to the Court.  The Clinic took the position that international and comparative human rights law together support an interpretation of Puerto Rico’s adoption law that would enable children in families with two same-sex parents to be adopted by their non-legal parent.  In doing so the amicus brief drew the Court’s attention to the international human rights norms that enshrine the rights of the child, the rights of the family and the right of the individual to be free from discrimination on the basis of sexual orientation.  It also pointed to the trend in the both the United States and around the world towards interpreting adoption statutes in a way that permits second-parent adoption without regard to sexual orientation.

The Clinic concluded that, by according due consideration to the human rights law and norms that have long informed the Commonwealth’s jurisprudence, the Court can and should interpret the Puerto Rican adoption law at issue to permit the child in this matter to be adopted by a parent she has known her entire life.

Caitlin Boyce LLM, Catherine Poynter 3L, Brian Ward 3L – authors of the AAR Amicus Brief for the Sexuality and Gender Law Clinic

Today is Constitution Day, the anniversary of the signing of the U.S. Constitution this day in 1787.   I’ll be one of the speakers at our Constitution Day event, and have put together these brief remarks to raise the question: to whom do the rights contained in the Constitution belong?

Fifty years ago police officers entered the bedroom of Mildred and Richard Loving in the middle of the night with flashlights and arrested them.  They charged them with a felony violation of the Commonwealth of Virginia’s miscegenation law.   They subsequently plead guilty and were  sentenced to one year in prison, but the judge agreed to suspend their prison sentence if they would not set foot together in the state of Virginia for 25 years.

The Lovings moved to DC, but missed seeing their families in Virginia.  So Mildred Loving contacted U.S. Attorney General Robert Kennedy about challenging the law.  His office referred her to the local chapter of the ACLU, not NAACP.   A nice white attorney at the ACLU took the case, but the Black community, including the NAACP, wasn’t altogether excited about a high-profile constitutional challenge to Virginia’s miscegenation law being brought at that time.  Interracial marriage was not the top on their list of things to fight and, as you see from reading the black papers at the time, there was no small amount of discomfort in the black community itself about a black woman marrying a white man.

The NAACP later got involved in the case when it went to the Supreme Court, submitting an amicus brief.  And as we all know, a unanimous Supreme Court found that the Virginia statute violated the Constitution because it was  “designed to maintain white supremacy.”    This is the only time that the Supreme Court has found any form of state action to be based in “white supremacy” rather than merely discriminatory – strong words indeed, and a very important precedent was established.

Today, a group of gay and lesbian couples have found two very well-known heterosexual attorneys to represent them in a Constitutional challenge to Proposition 8.   The lawsuit, Perry v. Schwarzenegger, was filed in federal court in California over the strong objections of the leadership of the lgbt community.  The lawyers in the case, Ted Olson and David Bois have gone so far as to oppose the lgbt groups’ efforts to join the case, while having no opposition to the motion to intervene filed by the Prop 8 proponents.

Ted Olsen said, in response to the lbgt community attorneys’ objections:

“David and I have studied constitutional law longer than we’d rather admit, and I think we know what we’re doing … this case is about the equal rights guaranteed to every American under the U.S. Constitution.”

But is it?  What does it mean that this case is only about the rights contained in the Constitution?  The U.S. Constitution is a living breathing document that is just a piece of paper until it is brought to life by real people in the real world. More than that, the rights it contains are won and lost in a social context that goes beyond the conclusions of a couple smart lawyers.

The Loving and Perry cases raise some hard questions for all of us who treasure the rights enshrined in the Constitution.  Who do rights belong to?  All of us surely, but it’s more complicated than that.   How do they belong to the plaintiffs in these cases who are determined to bring a rights-based lawsuit on their own behalf, in their own names, regardless of what the lgbt mandarins think they should do and how agendas should be set?  On the other hand, do attorneys such as Bois and Olsen owe no duty to communities affected by the outcomes of these cases?  A duty to consult?  A duty to follow their collective, reasoned advice?  A duty to work together?  These are complicated problems of ethics and responsibility that the Loving and Perry case make hard to resolve easily.

The community lawyers didn’t want to bring the Loving case, yet its resolution in the Supreme Court established one of the most important legal precedents in favor of racial and sexual equality. When you look at the federal judiciary today, including the Supreme Court, a judiciary that has largely been captured by conservative judicial ideologues, it’s hard to be very sanguine that the injustice of denying marriage rights to same sex couples will be as obvious to them as it has been to Bois and Olsen.  But maybe I’m wrong.  Or maybe a big loss in the Supreme Court will fuel a more aggressive response in state legislatures to undo the injustice perpetrated by the Court.  Who konws?

In the end, how the Perry case turns out is only one of the issues that should concern us.  There is a deeper question about who gets to decide when and how a manifest injustice is remedied.  Smart lawyers, community lawyers, individuals, or someone else?  These are hard problems that boil down to who owns these rights, and who owns the injustice when rights are being abridged.

Happy Constitution Day

The CRR-Columbia Fellowship is a full-time, residential fellowship for up to two full years starting in July 2010. The Fellow will be a member of the community of graduate fellows at the Law School and will be integrated into the legal and policy work of the Center and will have work space at both locations. The Fellow will also have access to law school facilities, including the library and on-line research resources, and faculty events. It is expected that the Fellow will work closely with an assigned Law School faculty mentor.

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The Gender and Sexuality Law Blog covered a case our Sexuality & Gender Law Clinic was handling back in May having to do with a man who applied for and was denied parole by the Massachusetts  Parole Board because he was gay.  See post here.

This week, the Parole Board granted Bruce Wilburn’s parole application.   See details below.

Massachusetts Parole Board Grants Parole to Openly Gay Inmate After New Hearing Following the Settlement of a Sexual Orientation Discrimination Suit

Major Victory for Columbia Law School’s Sexuality and Gender Law Clinic

The Massachusetts Parole Board granted parole to Bruce Wilborn, an openly gay inmate who had previously sued the board for harassing him and treating his parole application skeptically because he is gay. Mr. Wilborn settled his lawsuit last April in exchange for a new parole hearing, which took place in May. (The decision, which was signed by the board’s executive director on Aug.18, was released to Mr. Wilborn’s counsel yesterday.)

In October of 2008, Federal District Court Judge Patti Saris rejected the parole board’s effort to dismiss Mr. Wilborn’s sexual orientation discrimination claims. That decision, in turn, adopted a federal magistrate’s ruling, which held that “federal anti-discrimination guarantees apply to parole decisions.”  Columbia Law School’s Sexuality and Gender Law Clinic and the law firm McDermott Will & Emery LLP serve as counsel for Mr. Wilborn.

Mr. Wilborn is expected to return to his family in the fall.

“The board’s grant of parole reinforces that an inmate’s sexual orientation should not be the basis for denying parole,” said Suzanne B. Goldberg, director of the Law School’s Sexuality and Gender Law Clinic and a Clinical Professor of Law. “Earlier decisions in the case have shown that parole boards may not single out gay applicants and deny them fair and equal treatment. We are pleased that the law has now been followed in this case.”

“Mr. Wilborn fought for his right to receive a fair hearing,” added Mollie Kornreich, one of the students who represented Mr. Wilborn. “This is a gratifying outcome after that struggle.”

“I am thrilled that Mr. Wilborn has gotten the outcome he deserves. He has been a model inmate and an ideal candidate for parole,” said fellow student, Abram Seaman. “By granting Mr. Wilborn parole, the board is simultaneously giving a new start to a deserving man and establishing that treating a gay applicant’s sexual orientation as a negative factor for parole is both improper and irrelevant.”

Mr. Wilborn is represented by Neal Minahan and Lisa Linsky of McDermott Will & Emery LLP. Clinic students Mollie Kornreich ‘09, Keren Zwick ‘09, Abram Seaman ‘10, Adam Pulver ‘08, Amos Blackman ‘08, Simrin Parmar ’08, and Katherine Harris ‘09 have all worked on the case. Ms. Kornreich and Ms. Zwick argued against the dismissal of Mr. Wilborn’s case before Judge Saris, and Mr. Pulver argued against dismissal before Magistrate Judge Judith Dein.

To contact the students: Abram Seaman at abram.seaman@law.columbia.edu.

The last several weeks have been busy ones in the battle for marriage equality.  The governors of Maine and New Hampshire signed laws that allowed same sex couples to marry.  California’s Supreme Court upheld the constitutionality of Proposition 8, and we expected the New York State legislature to have a darn good chance of passing a marriage equality bill this session since the measure had already passed the Assembly and was working its way through the Senate – but then things all went haywire in Albany.  All of these efforts were plotted, led, coordinated and largely controlled by lesbian and gay litigation and policy organizations.  GLAD ran the plays in New England, and Lambda Legal, the ACLU’s Lesbian, Gay, Bisexual and Transgender Project, and the National Center for Lesbian Rights all played key roles in picking the plaintiffs, picking the state courts, and picking the state houses where the battles would be fought from Iowa to California to New York.  Almost without exception, the struggle and the strategy to secure marriage rights for same sex couples have been orchestrated by organizations that “belong to” the lesbian and gay community. These groups have held the view that it was best to take a state-by-state approach, working through state courts and state legislatures and staying clear of any federal court or congressional effort to secure marriage rights.

The whole thing took an odd turn the other day however when a newly formed group innocuously called the American Foundation for Equal Rights announced that it had filed a complaint in federal court in northern California challenging the constitutionality of California’s law restricting marriage to different sex couples.   AFER held a press conference on May 27th in which it produced two couples – one lesbian, the other gay – and two high powered and famous lawyers, Ted Olson and David Boies – both straight – who had filed a lawsuit in federal court the week before alleging that the California law violated the U.S. Constitution’s rights to Equal Protection and Substantive Due Process.  The complaint in the case is available here, other papers here.  It appears that AFER was formed exclusively or at least largely for the purpose of bringing this lawsuit.  It’s board, which it revealed in a press release issued several days after the announcement of the lawsuit, is made up, in part, of prominent Los Angeles movie business types/good guys -some of them straight, such as Rob Reiner and his wife Michelle Singer Reiner.

At the AFER press conference Olson and Boies stated emphatically that the California marriage/domestic partnership system established a separate and unequal regime that discriminated against lesbian and gay couples and denied them “the most fundamental of rights,” the right to marry the person you love.  They noted how they had been on the opposite sides of important litigation – most notably Bush v. Gore – and while Olson was a conservative and Boies a liberal, they both agreed that the U.S. Constitution secures same sex couples the right to marry, and analogized the constitutional harm here to that recognized by the Supreme Court in Loving v. Virginia.

The “mainstream” gay groups were outraged at the filing of this lawsuit, and immediately issued a statement of their own warning that this was not the right time to bring a marriage equality suit in federal court with the aim of taking it all the way to the Supreme Court.  Instead, they argued, the California problem should be resolved at the ballot box next November, and the federal marriage issues should be addressed carefully in GLAD’s “thoughtfully constructed” lawsuit challenging the federal Defense of Marriage Act.

Matt Coles, director of the ACLU’s LGBT Project, commented sarcastically in the New York Times : “It’s not something that didn’t occur to us. Federal court? Wow. Never thought of that.”

So what should we make of this new organization and its celebrity lawyers jumping into this issue with a risky strategy all Johnny Come Lately?  It’s not like straight people can’t understand the issue – after all, the lead lawyer at Lambda Legal handling the marriage litigation is heterosexual, and so was the lawyer Lambda hired to argue the issue before the Iowa Supreme Court.  Surely having two VERY prominent and gifted lawyers representing both ends of the political spectrum arguing the AFER case will impress the federal judge to whom the case was assigned, not to mention the Justices of the Supreme Court, who know them well (see below).

So often the lgbt litigation team worries about a case being filed by some inexperienced solo-practitioner who happened to have clients walk in the door and naively filed a case making all the wrong arguments and being way over their heads.  That’s not the issue here.  Olson and Boies aren’t naive, they just came to a different strategic judgment about the wisdom of going into federal court on this issue.

On the other hand, it’s hard to miss the odor of hubris that emanated from the AFER press conference and the dynamic duo’s subsequent discussion of the case in the press.  It’s almost like they’ve taken the view that the lgbt community’s lawyers got the issue started and now it’s time for the serious lawyers to get involved.  Whatever you might say about the arguments made by the movement lawyers – and I’ve been plenty critical of their decisions – you cannot deny that we’ve got very smart and effective lawyers and lawyering at Lambda, the ACLU, GLAD and NCLR.   Boies and Olson’s decision to get in now, and to get in in a way that not only ignores the work of movement lawyers, but flies in the face of their collective judgment, leaves me with a very bad taste.  Their comments betray little sensitivity to the fact that these cases are not only about the two couples they conjured up who want to marry, and are not only about the rightness of their analysis of the rights secured by the Constitution.

“If you look into the eyes and hearts of people who are gay and talk to them about this issue, that reinforces in the most powerful way possible the fact that these individuals deserve to be treated equally,” Mr. Olson said at the news conference.  “I couldn’t have said it better,” said Mr. Boies, patting Mr. Olson on the back.  But this issue isn’t about the Boies-Olson love-o-meter, it’s about a moment that has grown out of a political movement and that has  a critical ethical relationship to that movement.

What gets me about this lawsuit and the Boies/Olson part of it is the way in which it’s a win/win for them, possibly at the lgbt community’s expense.   Yea, they might win – and then they look like the big straight daddies coming in to save the lgbt community from the ill- advised judgment of it’s own less experienced lawyers.  And if they lose, well, they look all the better for taking on a difficult cause.

Ted and Lady Olson's Wedding

There is no downside for them.  Instead of showing up all Dudley Do-Right to save the day, grandstanding before the cameras about how righteous they are, they could work behind the scenes to persuade their peers, left and right, on this issue.  What I’d really like to see them do is “suspend” their own marriages and urge straight people to go on matrimonial strike until same sex couples gain full equality.  Indeed, both of them seem to LOVE getting married. Olson has been married four times.  His third wife Barbara, as most of us know, was a conservative commentator who was killed when she was a passenger on the hijacked American Airlines Flight 77 that crashed into the Pentagon on September 11, 2001.  He married his fourth wife, Lady Booth, a tax attorney who donated to the Obama campaign, on October 21, 2006 in the presence of many Washington luminaries, including Justices Sandra Day O’Connor and Anthony Kennedy.

Boies has been married three times.  He married his high school sweetheart in college. While studying law at Northwestern after they had divorced, he fell in love with a fellow law student,  Judith Daynard Fillman, who happened to be the wife of one of the law faculty, and both of them transferred to east coast law schools, Judith to Columbia (’65) and David to Yale (’66) and they married three years later.  They later divorced, but Judith Boies remains a partner in the Bois law firm.  He married his third wife, Mary McInnis, in 1982.

I’m the last person to throw stones at people who have fallen in love and committed to more than one person in their adult lives, as these two men have.  But I have little tolerance for straight people who refuse to see or distance themselves from the financial, social and personal value they have gotten out of the institution of marriage as an exclusive club only they can join.

Sure, get involved in the marriage equality movement.  Lend us your expertise, your legal wisdom and your firm and professional resources.  But you can’t have it both ways – marrying early and often and professing a principled objection to the exclusion the institution represents.

Kinda makes you wonder what other clubs they belong to.

	Columbia Law students Mollie Kornreich, Abram Seaman, and Keren Zwick have taken up Bruce Wilborn’s case out of their belief he was denied parole in the killing of a gay man because he too is gay.

At first blush, Bruce Wilborn is not the ideal client for a lawyer. The 46-year-old gay man has been incarcerated in Massachusetts since 1985, after being given a life sentence with the possibility of parole.

Wilborn and his partner in 1983, Robert Gonzalez, conspired to kill Stanley Weinstock, a 54-year-old gay man, to collect the proceeds from his will that named Wilborn as the beneficiary.

This was not an impulsive murder. Wilborn and Gonzalez, who were 20 and 24 in 1985, made a pact to kill Weinstock on October 11, 1983. They put a great deal of thought into a plan that they hoped would hide their involvement, and they executed that plan 11 days later.

“It was a predetermined act of both of these people that [Weinstock] should die for their love and for money,” said Matthew J. Ryan, Jr., the district attorney who handled the 1985 trial, in a published report from that year. “Either or both of them expected to benefit from Stanley Weinstock when he died, either by way of a will or by an insurance policy.”

What drew the attention of a leading gay rights lawyer and a group of law students at Columbia University was how Wilborn was treated when he applied for parole in 2006. Three parole board members made comments and asked questions that suggested that Wilborn was denied parole because he was gay, he charged in a later lawsuit.

“The judge did suggest that the kind of behavior the parole board engaged in would constitute discrimination had it gone to trial,” said Keren Zwick, one of six law students who worked on the case with a private attorney and Suzanne B. Goldberg, director of the university’s Sexuality and Gender Law Clinic.

At a second look, Wilborn might be the perfect client. He had one disciplinary infraction during his prison time, and that was in 1991. He published two books while incarcerated and is working on a third. His family in Illinois will aid him if he is released.

And then he was wronged by the parole board, his student lawyers assert.

“At the baseline level, there was no rational basis for their negative consideration of his sexual orientation,” said Mollie Kornreich, one of the students.

The students did what good lawyers do when they represent clients who have committed heinous and violent crimes — they fought back.

“Even if you believe your client is guilty, you represent him zealously,” said Abram Seaman, who is gay and one of the students.

When Wilborn was denied parole in 2006, he appealed. That appeal was denied in 2007. He sued in federal court that year, initially representing himself, and then was aided by the Columbia students.

While sexual orientation is not a protected class in federal anti-discrimination laws, that does not mean that government entities are free to discriminate on that basis at will. Wilborn’s advocates asserted that his equal protection and due process rights under the US Constitution were violated when the board denied him parole because he was gay.

“It’s not unprotected, it just gets less protection,” Kornreich said.

Wilborn and the Columbia students won. In 2008, the state settled without admitting to any wrongdoing and agreed to give Wilborn another parole hearing on May 28. Normally, an inmate such as Wilborn gets a hearing every five years, so this latest hearing will come more than two years early.

The students are helping Wilborn prepare for the hearing and they fully believe that he deserves to be paroled.

“The function of a parole system is to recognize that people can rehabilitate themselves,” Seaman said. Zwick added, “Our personal feeling is that he isn’t likely to re-offend.”

While the settlement is not a legal precedent for other courts, it can be cited by attorneys or inmates who find themselves in a similar situation. “It’s not binding, of course, but it is persuasive,” Zwick said.

Judges can sometimes be reluctant to be the first to rule favorably for a gay or lesbian person, Wilborn’s advocates argue. His case, in their view, solves that problem and it is one more step forward for the queer community.

“Cases like this are exciting because they establish incrementally this is not okay, this is not okay,” Kornreich said.

Sonia Sotomayor, nominated by President Obama to the U.S. Supreme Court, has taught a course on Federal Appellate Court advocacy at Columbia for several years.  While President Obama’s adjunct teaching job at the University of Chicago is often cited as one of his credentials, little mention has been made of Judge Sotomayor’s teaching experience.  Hmmm.

Students who have taken her course at Columbia have raved about her, her willingness to mentor them, push them, and take them seriously.  Here are excerpts from student evaluations of her course:

- Judge Sotomayor is extremely accomplished, interesting and knowledgeable.  She is one of the top judges at the 2nd Circuit, and to get to sit in a class with her and just a handful of students is an incredible experience.

- Judge Sotomayor is an amazing judge, and person, and I feel privileged to have had a chance to learn from her.

- Judge Sotomayor is clearly brilliant and it’s great to be in class with her. She is really exceptional. It is interesting to hear the principles she applies to appellate adjudication. This was the best class I have taken at Columbia.

- As a student of the law, I found Judge Sotomayor’s lectures to be very interesting–she can offer a viewpoint of the law from the perspective of a prosecutor, a private litigator, a district court judge, and an appellate court judge.

- Judge Sotomayor really seems to enjoys teaching this class—and mentoring young lawyers generally—and it shows in her enthusiasm and preparation. This class is one of the great privileges of Columbia law school.

Columbia’s Dean for Social Justice Programs, Ellen Chapnick, was on CNN this morning talking about Judge Sotomayor as a friend and colleague, link here.