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.
States with more Catholics more favor gay rights
Want to predict which state might move next to legalize same-sex marriage? You might count Catholics. The higher their percentage of the population, the more likely the state is to… support gay rights.
This counter-intuitive finding is brought to you with a tip of two hats — mine to Mark Silk at Spiritual Politics and his to Robbie Jones who led Silk to a new study soon by be published by two Columbia University political scientists.
Jeffrey Lax and Justin Phillips examined public support and resulting political policy on eight issues including marriage, housing, adoption and hate crimes.
The main thrust of the study was to examine whether there is “pro-gay bias in policy making” (the authors conclude no) or a tyranny of local majorities “in which anti-gay majorities trump minority rights” (the authors again say no).
See States with more Catholics more favor gay rights
USA Today -
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Homosexuals dispel myth of “progressive”
Each year in Germany, from the end of June through August, gay and lesbian rights’ activists celebrate the “Stonewall” uprising – named after a gay bar on Christopher Street in New York, where homosexuals fought back against police brutality in 1969.
Participants in the German parades known as “Christopher Street Day” join other activists around the world who take to the streets to demonstrate gay pride and demand greater freedoms.
Some of those freedoms would include expanded civil rights. In Germany, civil unions, for instance, have been permitted among same-sex couples since 2001, but full marriages are not. Homosexual couples therefore do not enjoy the same rights as married heterosexual couples when it comes to taxes, retirement, civil servant benefits, or adoption law.
For more on gay and lesbian rights and the community in Germany, click on the links below, or listen to this week’s “Living in Germany” program to hear a more personal account of a homosexual civil union.
DW-WORLD.DE
Audios and videos on the topic
See Homosexuals dispel myth of “progressive” Germany Deutsche Welle
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DC Law Helps Lesbian Couples Become Moms
A new D.C. law is making it a lot easier for a newborn to have two mommies from birth. According to the law, which went into effect on July 18, the District of Columbia will confer “the status of legal parent on both lesbian mothers who plan a child using donor insemination,” Nancy Polikoff reports.
In the past, the birth mother’s partner would have to go through an adoption process to become a legal parent of the child; now, the second mommy just needs to fill out some paperwork to demonstrate her “written consent” of parenthood. Polikoff notes that the new law is “marital status-neutral and gender-neutral,” so it will change parenthood policy in a couple of other situations as well:
See DC Law Helps Lesbian Couples Become Moms Washington City Paper
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Law Extends Parental Rights for Gays
Lesbians in the District no longer will need the written consent of their partners to adopt children born to their partners through artificial insemination, under a new law that took effect Saturday.
The name of a consenting spouse or unmarried partner will appear on the child’s birth certificate as the legal parent, a status that previously had to be obtained by same-sex parents through a complicated adoption process.
The Domestic Partnership Judicial Determination Parentage Act of 2009 puts the city out front when it comes to children born of same-sex parents, according to the National Center for Lesbian Rights (NCLR), the Gay and Lesbian Activists Alliance of Washington (GLAA) and American University law professor Nancy Polikoff.
See Law Extends Parental Rights for Gays
Washington Post
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Councilmen waver on new gay marriage bill
Porterville city councilmen rehashed a contentious issue Tuesday night — gay marriage.
Former mayor Cameron Hamilton proposed that council members show adamant opposition to a bill circulating among state legislators.
Senate Bill 54 proposes same-sex couples married outside the state, and before the passage of Proposition 8, are warranted the equal recognition as married spouses in California.
The council formerly engaged with a state issue on Sept. 2, 2008 by adopting a resolution supporting Proposition 8. The ballot measure, which was passed by California voters in November, codifies that marriage in California is only between a man and a woman.
This time the vote was not unanimous.
By a sliver — two in favor, two opposed, one abstained — council members allowed Hamilton to draft a resolution to approve or disapprove at a future meeting.
See Councilmen waver on new gay marriage bill
Porterville Recorder
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Florida Gov. Charlie Crist gives different answers on gay adoption
As a part of his statewide tour for “Explore Adoption Day,” Crist spoke to a crowded courtroom at the Duval County Courthouse about the increase in adoptions throughout the state.
Crist and other adoption advocates talked about the need for even more adoption, especially for older children who have a difficult time making it out of the system.
When he was running for governor in 2006, Crist told The St. Petersburg Times, “My position is the traditional family is the best to adopt.” He reaffirmed that statement on Wednesday in Jacksonville.
See Florida Gov. Charlie Crist gives different answers on gay adoption
Florida Times-Union -
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Church and Straight in CT
The Family Institute of Connecticut apparently blew too much money on Question 1 ads to afford a real lawyer.
We bet that’s why Pat Robertson’s non-profit firm, the American Center for Law and Justice, helped them bully the Connecticut Department of Children and Families into removing “open and affirming” churches from a list of gay-friendly resources on the department’s Web site on seperation of church and state grounds.
(No, really, the Family Institute of Connecticut accused someone else of misunderstanding the separation of church and state.)
“A handful of the links related to religious organizations considered to be — what are the words I want to use? — progressive on gay and lesbian issues,” explains Gary Kleeblatt, communications director for the DCF, who says the agency got a letter from the Family Institute inferring a lawsuit from Robertson’s team of cranks could be forthcoming.
Kleeblatt assures us the DCF is still “extremely enlightened to gay and lesbian issues. We welcome gays and lesbians to adopt. We also recognize there are gays and lesbians in our care. But we can’t be seen as endorsing any religious groups.”
Shirley Gadson, pastor of Bridgeport’s open and affirming Open Door Ministries, says, “I think that people have to realize Christ loves everybody and is open and affirming to everyone.”
Family Institute executive director Peter Wolfgang told our parent paper, the Hartford Courant, “We said all along that if same-sex marriage was imposed in Connecticut, the next thing that would happen would be an effort to reeducate Connecticut children.”
Yes, that’s right! First comes gay marriage and then comes … some constitutionally questionable links on the DCF’s Web site. Feel that? It’s the foundations of our society shaking!
fairfieldweekly.com
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Senate adopts amendments to hate crimes measure
The U.S. Senate has adopted a hate crimes measure as part of the fiscal year 2010 defense authorization bill — and with it, amendments introduced by an opponent of hate crimes legislation.
Adopted on July 16 by unanimous consent after cloture was invoked, 63-28, the hate crimes measure was altered by four amendments. All four amendments were approved Monday.
See Senate adopts amendments to hate crimes measure
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Another “DOMA GOP” politican has zipper trouble: Sen. Paul Stanley Caught in Sex Scandal
Well, it was only a matter of time, wasn’t it? According to authorities, one of our own social conservative Republicans has been caught cheating on his wife, and he was doing it with a young legislative intern. At this juncture, we’re going to resist the temptation to make a joke about family values. That’s getting so old it’s not funny anymore.
Suffice it to say that like John Ensign, Mark Sanford and all the rest on the national stage lately, this one is really rich–with a little homemade porn and a bumbling blackmailer tossed into the story to make it even spicier. Ensnared in Tennessee’s own sex scandal tonight is Sen. Paul Stanley, the wingnut from Germantown who has crusaded to ban gay adoption of children and who once made the really stupid mistake of saying: “When you’re married, there’s a commitment there.”
According to court documents, here’s what happened: Stanley, who is married with two children, was having an affair with his 22-year-old legislative intern, McKensie Morrison. Morrison’s boyfriend, Joel Palmer Watts. 28, discovered a computer memory disc with sexually explicit photographs of Morrison that appeared to have been taken in Stanley’s apartment. Watts then blackmailed Stanley, demanding $10,000 in return for keeping quiet about the senator’s relationship with his intern.
See Sen. Paul Stanley Caught in Sex Scandal
Nashville Scene
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