Culhane: Pawlenty throws gays under the bus

OK, maybe it’s just because I’ve taught Torts for so long, but an apparently minor development out of Minnesota really has me irked.

First, consider these two stories:

(1) A California woman is mauled to death by vicious dogs, under circumstances so horrific that the owner is convicted of second-degree murder. Her surviving same-sex partner sues under the state’s wrongful death law. Under a strict reading of the statute, she would lose because she doesn’t have “standing” to sue – unlike the deceased woman’s mother, who does have such standing, even though her actual financial and emotional losses are much less. Yet the court allows the claim to proceed anyway, and she collects a large settlement.

(2) A New York couple enters into a civil union in Vermont. Later, one of the men dies because of alleged medical malpractice. Instead of contesting the merits of the suit, the hospital moves to dismiss the claim because the surviving “spouse” isn’t a spouse at all – the civil union doesn’t count. A trial judge allows the case to proceed, but the appellate court holds that the case should have been dismissed.

Since those cases were decided, the laws in both New York and California have been changed to allow “registered” same-sex couples to bring their claims – not necessarily to recover, simply to have the right to try to establish their losses.

These developments had no effect on Minnesota Governor Tim Pawlenty, who has just vetoed a bill that would have given surviving members of same-sex couples the right to make decisions about the remains of their partners and the right to sue in wrongful death for negligent acts that resulted in their partners’ demise.

When Pawlenty gave as the reason for his veto that the law was unnecessary because same-sex couples can protect themselves by executing living wills, he was flat wrong – at least as to the wrongful death part of the law.

Some quick background on wrongful death law (more than you’d probably ever want to know): These state laws are designed to provide the survivor with what he or she would have been expected to receive from the deceased: In most states, including Minnesota, damages can include some of the income that the deceased would have been expected to earn (whatever the survivor could have been expected to receive), as well as the loss of emotional support and companionship.

So what’s the problem for same-sex couples? Unlike most of tort law, suits for wrongful death are based not on judge-made (common) law, but on statutes that clearly define who’s eligible to recover. And most of the statutes continue to restrict recovery to certain named classes of survivors: In Minnesota, which is fairly typical in this regard, that’s limited to spouses and “next of kin.”

So why and how did judges in California and New York hold to the contrary? By looking to the purpose of the law, which is to compensate based on real loss, and to make sure that bad conduct is deterred. Since the strict categorical requirements of wrongful death laws frustrate those purposes, judges are tempted to “get creative.”

Given the purposes of the law and what the California judge called the “insurmountable obstacle” that gay and lesbian couples face in these cases – you can’t contract around a statute – why the veto?

Here’s a thought: Pawlenty wants to be President, and has to burnish his social conservative credentials first. So everything becomes a threat, suddenly, to “traditional marriage” – however tangential the message on marriage, and however real the costs to actual people.

Here are a few questions I’d like to ask Gov. Pawlenty.. I’m going to send them to his office (unless a reader living in Minnesota would like to!), but I don’t expect an answer.

“Governor, under the law as it now stands, a murderer would owe nothing to the surviving member of a same-sex couple, even if the deceased provided most of the support for that survivor. Can you explain and justify the policy that permits this result?”

“The result of these statutes is so unfair that judges in other states have ignored their language and looked to the purpose of the law in allowing these claims. Why not simply amend the law to better reflect the compensatory and deterrent purposes of wrongful death law?

“What advice would you give to same-sex couples to protect themselves against this result?

“If the same-sex couple had adopted a child, that child’s future prospects could be negatively and even dramatically affected by her surviving parent’s inability to recover for wrongful death. Why should that child be differently affected than the child of an otherwise identical opposite-sex couple?

“You described the law as “divisive.” Can you explain why this law is any more divisive than the one you signed last year, that prevented jointly owned homes from being sold to pay medical bills when one partner dies?”

Politicians in the Pawlenty mode continue to throw us under both the express and the local bus: Marriage and the puny but necessary baby steps that are necessitated by intransigence on full equality. We must hold him accountable, now and if he seeks the Presidency.

John Culhane is Professor of Law and Director of the Health Law Institute at Widener University School of Law in Wilmington, Delaware. He blogs about the role of law in everyday life, and about a bunch of other things (LGBT rights, public health, sports, pop culture, music philosophy and lots of personal stuff) at: http://wordinedgewise.org. A fuller bio can be found here. He can be reached via email at: johnculhane@comcast.net.

Cardinal: Catholic schools welcome kids of gays – but priest made OK call

(Boston) Boston Cardinal Sean O’Malley on Wednesday defended a priest who denied admission to a parish school to a gay couple’s child, calling it a pastoral decision and saying the priest had his “full confidence and support.”

O’Malley’s comments on his blog were his first public remarks about the decision earlier this month by St. Paul Elementary School in Hingham to rescind the boy’s acceptance because his parents are lesbians.

A parent of the boy said the Rev. James Rafferty, the parish priest at St. Paul’s, said her relationship was “in discord” with church teachings, which sees marriage as only between a man and a woman. She said the principal told her teachers wouldn’t be prepared to handle the boy’s questions when he realized the church’s view of family conflicted with what he saw at home. The parent spoke to The Associated Press but asked not to be named to protect the welfare of the child.

The decision prompted calls for O’Malley to intervene. The Catholic Schools Foundation, which O’Malley chairs, said the decision was at odds with Gospel teaching, and it wouldn’t fund schools that made similar decisions.

The archdiocese’s head of education later called the parent, apologized and offered to help the 8-year-old enroll in another Catholic school.

O’Malley said Rafferty had come under “undue criticism” for the decision.

“He made a decision about the admission of the child to St. Paul School based on his pastoral concern for the child,” O’Malley wrote. “I can attest personally that Father Rafferty would never exclude a child to sanction the child’s parents.”

The archdiocese said it is creating a policy to clarify its schools don’t bar children with same-sex parents.

“It is true that we welcome people from all walks of life,” O’Malley wrote. “But we recognize that, regardless of the circumstances involved, we maintain our responsibility to teach the truths of our faith, including those concerning sexual morality and marriage.”

O’Malley began his post with a recollection about meeting the young daughter of a murdered woman who had run a brothel while he was bishop in the West Indies. He said the woman’s daughter had left public school because she was being badly taunted, and he immediately directed that the girl be admitted to the local Catholic school.

“Catholic schools exist for the good of the children and our admission standards must reflect that,” he wrote. “We have never had categories of people who were excluded.”

The Hingham case was similar to a situation in Boulder, Colo., in which a Catholic school said two children of lesbian parents could not re-enroll because of their parents’ sexual orientation, and the Denver Archdiocese backed the decision.

“It is clear that all of their school policies (in Denver) are intended to foster the welfare of the children and fidelity to the mission of the Church,” O’Malley wrote. “Their positions and rationale must be seriously considered.”

Withers: Hockey GM fights homophobia in schools

[1] [2]

Brian Burke [3], the GM for the Toronto Maple Leafs, was the main speaker when Egale Canada [4], the country’s national gay and lesbian political rights organization, launched a new site. Called MyGSA.ca [5], the web address serves as an information center for Canadian teachers and their gay and lesbian students.Burke talked about his son, Brendan [6]; the young man, a senior at Miami University and advocate for gay rights, died in an early February car accident. Before his untimely death, father and son were profiled on ESPN [7]. The story focused on a young gay man and the support he received from his father, family, and the Maple Leafs organization.

The elder Burke wants to continue the good work his son started. This means making sure gay and lesbian students can attend school without harassment

“I hate bullies,” he said. “We have to get to the point where everyone can go to school free of fear.” [8]

Burke is convinced there is a closeted player in the NHL, but fear keeps that unknown player from stepping out. It’s not clear if Burke by himself can sweep that away. That job takes more than one man; however, he gets points for being a great father and doing his best to make sure no kid feels he/she has to hide.

[1] http://outsports.com/jocktalkblog/2010/05/18/brian-burke-fights-homophobia-in-schools/
[2] http://www.365gay.com/wp-content/uploads/Burkes-top.jpg
[3] http://outsports.com/jocktalkblog/2010/05/18/brian-burke-fights-homophobia-in-schools/
[4] http://www.egale.ca/
[5] http://mygsa.ca/first
[6] http://www.365gay.com/news/burke-talks-about-sons-death/
[7] http://outsports.com/jocktalkblog/2009/11/25/nhl-gm-brian-burke-supports-his-gay-son/
[8] http://www.theglobeandmail.com/sports/keeping-his-sons-voice-alive-brian-burke-joins-fight-against-homophobia/article1572404/

Ask the Expert: ‘Do I buy my boyfriend an engagement ring?’

Stumped on when to send out your STDs (save-the-date announcements)? Don’t know who should be invited to your rehearsal dinner? Get the answers to all your wedding etiquette questions by submitting your dilemma to etiquette@equallywed.com [1]

Q I’m planning on proposing to my boyfriend, and I’m wondering how other men propose to one another? An engagement ring is really for females since they can wear an engagement and wedding ring. While I realize there are no rules, a man with two wedding bands just doesn’t make sense to me. Plus, I’d rather purchase rings together (most likely matching) with my partner when we are ready to wed. So what does one propose with? Another ring? A watch? I can’t seem to find anything about this online…

A gay marriage is all about embracing who you are and who you love, which means that you should do what makes sense for you, and if that’s wearing an engagement ring, a wedding band and stackable anniversary bands up to your fingernail, then by all means, feel free.

But to give you a proper answer from a man’s point of view, we deferred to a groom who’s recently been in your situation, Steve Schessler, who makes up half of one our Real Weddings couples in our Spring issue of Equally Wed magazine. Read about his and Jonathan’s wedding here [2].

[3]

Schessler says, “For our part, I bought an engagement ring for Jonathan after some months of sideways questioning, ‘So do you like something like this?’ or ‘Do you remember your ring size?’ Not so indirect, but he somehow still wasn’t thinking the proposal was on the horizon, and coming closer. In the end, the main stipulations were no stones, simple design and a fairly thin band. I found the perfect one at Cartier, from their ‘Love’ series.

“After the proposal, Jonathan decided he wanted to get an engagement ring for me as well, so we went back to Cartier and found a complementary ring from the same collection, but bigger for my larger hands.

“At our wedding in Atlanta, we exchanged these same rings, and had planned to go without a band. We then were invited to participate in a No on Prop 8 fundraiser in San Francisco, where we’d already moved, for our legal California ceremony. As part of that event at the Bently Reserve, Shreve & Co. donated two bands of our choosing—and we now wear both our original engagement bands and the very thin Furrer Jacot rose-gold bands from the legal ceremony.

“We have some friends who used engagement rings (with both guys always getting one eventually) and then exchanged them at their wedding as well, while we know a few other couples, who did both engagement rings and wedding bands. The biggest difference, I think, is that both of the guys have the same number of rings—either one, if they re-exchange, or two, if they add bands.”

Kirsten Palladino is Editor in Chief of Equally Wed, the nation’s premier same-sex wedding magazine, online at www.equallywed.com [4]. Equally Wed offers gay, lesbian, bisexual and transgender couples an extensive, trustworthy and fashionable guide of inspiration, ideas and trends for planning their engagements, weddings and honeymoons, as well as their happily ever after. The photo-rich site is home to Equally Wed’s Local Resources, a veritable marketplace of vetted GLBT-friendly wedding vendors across the United States and abroad. It also offers an interactive social community to talk to other readers about all things wedding, as well as the latest news from the frontlines of the fight for marriage equality. Follow Kirsten on Twitter at http://www.twitter.com/equallywedeic [5].

[1] http://www.365gay.commailto:etiquette@equallywed.com
[2] http://equallywed.com/real-weddings-main/real-weddings-jonathan-and-steve.html
[3] http://www.365gay.com/wp-content/uploads/news-marriage-men-rings-wedding-top.jpg
[4] http://www.equallywed.com
[5] http://www.twitter.com/equallywedeic

Gay-friendly judge wins Ore. Supreme Court race

(Portland, Ore.) An appeals court judge who wrote a historic opinion extending gay and lesbian rights, has won a seat on the Oregon State Supreme Court.

Jack Landau, an Oregon Court of Appeals judge, on Tuesday defeated Allan J. Arlow, an administrative law judge with the Oregon Public Utilities Commission.

Landau had 71 percent of the votes, with 56 percent of the expected vote counted.

As an appeals court judge, Landau wrote the opinion in Tanner v. OHSU, which ruled that employers cannot discriminate against gay and lesbian couples when providing health care benefits.

The Supreme Court seat opened with the retirement of Justice W. Michael Gillette.