Marriage/CU cases headed to Euro court

The European Court of Human Rights will decide on UK’s gay marriage, straight civil union ban.

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.

Culhane: Why do gays and lesbians care about marriage?

How did marriage, of all things, become the cause célèbre of the LGBT rights movement? Let’s face it: There are good historical reasons for us to eschew and pooh-pooh this institution, which doesn’t exactly have a glorious track record.

“Since When is Marriage a Path to Liberation?” was the provocative question that lesbian activist Paula Ettelbrick raised in an influential article more than 20 years ago. Her article slammed what was then the emerging focus on same-sex marriage as a misguided effort that would secure gay and lesbian “equality” within the stifling confines of an inherently unequal and patriarchal institution.

Yet there we were, Ettelbrick and I, together in 2007 on a panel discussing LGBT legal issues, and she was arguing for marriage equality. What happened?

I had the chance to ask her about this dramatic about-face during a cab ride to the train station after the event. Had she been possessed by the spirit of Andrew Sullivan? Well, kind of. All of the same-sex couples making their clear and passionate case to have the state recognize their unions had convinced her to value reality over ideology, and (here I’m guessing) perhaps to see that same-sex marriages have the potential to revitalize the institution, and to help transform it into a more egalitarian partnership.

But why is it so important for the state to recognize our unions in the first place? Let’s start by considering the alternatives. The first of these is a religious union. For many lesbian and gay couples, getting married in their church, synagogue, or mosque is deeply meaningful. But it’s not enough. Some (straight and gay) couples don’t derive spiritual nourishment from such ceremonies. And even for those who do, “the power vested in” clergy to legally solemnize marriages can’t solemnize theirs.

So what about a “secular substitute” for marriage, such as the civil union, that confers all the benefits of marriage but not the title?

Do I really need to ask this question?

First, the civil union doesn’t confer all of the benefits of marriage. It’s not recognized at the federal level, so that even if the obnoxious Defense of Marriage Act were repealed, couples in a civil union wouldn’t have any of the federal benefits of marriage, which are the most significant ones.

But it’s not just about the benefits, either. In some paradoxical way, the civil union is worse, because it’s pure discrimination. The state has given up all of the arguments against equality in conferring the civil union status, but still insists on a separate label. In In re Marriage Cases, The California Supreme Court hit the bull’s-eye in rejecting this kind of “virtual equivalence:

“[A]ssigning a different designation for the family relationship of same-sex couples…poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect.”

By this point, some of you are likely muttering: “OK, marriage, fine. But what about discrimination, social justice, and the real economic barriers to equality? Aren’t these the things that should be concerning us instead of this mostly abstract equality debate?”

Well, you probably didn’t mutter exactly that, but the point is fair anyway. Why all this emphasis on marriage?

First, many of us are, at heart, assimilationists who want to fit in with the most traditional structures. Think marriage and – the prom! Those gay and lesbian teens [1]who demanded to attend their proms are radical and traditional at the same time, as are those seeking marriage equality. It’s that scary incursion of the outlandish into “safe” structures that explains, at least in part, the sometimes vicious resistance we find in everyone from Maggie Gallagher to those parents who engineered the fake prom [2] that Constance McMillen was sent to.

The other part of this fight for equality has to do with the government’s role in the discrimination. Remember that many of the most important achievements of both the civil rights and women’s movements were ending government-sponsored discrimination in voting, unfair marriage laws, and segregated public facilities and schools. If government is willing to declare that members of a group are second-class citizens, then private and social discrimination is fair game.

Since laws prohibiting same-sex intimacy have now been declared unconstitutional, the most important state-sponsored formal discriminations we face are DADT and the ban on our marriages. So, while marriage may never be a path to liberation – much less to robust social and economic fairness – it’s a vital part of our rights as citizens. That’s why it matters.

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, philosophy and lots of personal stuff) at: http://wordinedgewise.org. Here’s a fuller bio [3]. He will be blogging the week-long Equality Forum [4] from Philadelphia later this month.

[1] http://www.365gay.com/blog/ruby-sachs-prom-politics/
[2] http://advocate.com/News/Daily_News/2010/04/05/ACLU_Investigating_Fake_Prom/
[3] http://law.widener.edu/Academics/Faculty/ProfilesDe/CulhaneJohnG.aspx
[4] http://equalityforum.com

Sweden’s Lutheran church names first lesbian bishop

(Stockholm) Sweden’s Lutheran church consecrated its first openly gay bishop, just two weeks after it gave clergy the right to wed same-sex couples.

Eva Brunne became bishop of Stockholm’s diocese in a ceremony Sunday.

She lives in a “registered partnership” with another woman, a civil union between gays used in Sweden before …

Four Okla. women continue fight against gay marriage ban

Four Oklahoma women have filed a new complaint challenging federal and state laws banning gay marriage, reports the Journal Record.

One of the couples, Susan Barton and Gay Phillips, were married in California in Nov., British Columbia in May 2005 and a civil union in Vermont in August 2001. The second …

‘Two-Track’ Church Suggested by Archbishop of Canterbury

PARIS — The Most Rev. Rowan Williams, the archbishop of Canterbury, said profound differences among the world’s 77 million Anglicans over gay clergy and same-sex unions could divide their church into a “two-track model” yielding “two styles of being Anglican.”

The formula could avert a formal breach between liberals and conservatives but bring new strains in the relationship between the global Anglican Communion and American Episcopalians who resolved this month to open the door to ordaining openly gay bishops and to start the process of developing rites for same-sex marriages.

Archbishop Williams insisted that the issue should not be debated “in apocalyptic terms of schism and excommunication but plainly as what they are — two styles of being Anglican.”

In a lengthy message published Monday on his Web site, the archbishop offered a detailed and nuanced response to events at the Episcopal convention in Anaheim, Calif., this month when gay-rights advocates in the United States chalked up major victories over conservatives on sexual issues. The Episcopal Church is the official branch of the Anglican Communion in the United States.

The developments were seen by liberals and conservatives as likely turning points in the history of the divided Episcopal Church, reflecting the profound rifts over sexual issues within Anglicanism — the world’s third largest network of Christian churches after the Roman Catholic and Orthodox Churches. The differences have crystallized around the Episcopal Church’s consent in 2003 to the consecration of the church’s first openly gay bishop, V. Gene Robinson of New Hampshire.

The Episcopalians had agreed to a moratorium on the election of gay bishops, but it was lifted at the convention in Anaheim.

The archbishop of Canterbury is the spiritual head of the Anglican Communion, which is composed of 38 provinces worldwide. The Episcopal Church claims about 2.3 million members.

In his message, Archbishop Williams repeated his view that “a blessing for a same-sex union cannot have the authority” of the full Anglican Communion, any more than a blessing for a heterosexual couple living outside marriage would have.

That, in turn, means that as long as the broader church “as a whole does not bless same-sex unions, a person living in such a union cannot without serious incongruity have a representative function in a Church whose public teaching is at odds with their lifestyle.”

The issues have confronted the archbishop with deep divisions not simply between liberals and conservatives in the United States but also across the broader church with its many followers in Africa, Britain and elsewhere. Four conservative dioceses in the United States and many individual Episcopal churches have broken away from the national denomination to forge alliances with conservative Anglican groups such as the Anglican Church of Nigeria.

Archbishop Williams said: “There is at least the possibility of a twofold ecclesial reality in view in the middle distance: that is, a ‘covenanted’ Anglican global body, fully sharing certain aspects of a vision of how the Church should be and behave, able to take part as a body in ecumenical and interfaith dialogue; and, related to this body, but in less formal ways with fewer formal expectations, there may be associated local churches in various kinds of mutual partnership and solidarity with one another and with ‘covenanted’ provinces.”

The archbishop has promoted the idea of covenant — described by some analysts as a kind of good-behavior guide for churches — to overcome the rift.

“This has been called a ‘two-tier’ model, or, more disparagingly, a first- and second-class structure,” the archbishop’s message said. “But perhaps we are faced with the possibility rather of a ‘two-track’ model, two ways of witnessing to the Anglican heritage, one of which had decided that local autonomy had to be the prevailing value and so had in good faith declined a covenantal structure.”

The message continued: “It helps to be clear about these possible futures, however much we think them less than ideal, and to speak about them not in apocalyptic terms of schism and excommunication but plainly as what they are — two styles of being Anglican, whose mutual relation will certainly need working out but which would not exclude cooperation in mission and service of the kind now shared in the Communion.”

See Anglican Sees ‘Two-Track’ Church @ New York Times

Archbishop warns ordination of gay clergy could lead to two-tier … guardian.co.uk
Anglican Head Warns Of Two-Tier Church After Gay Vote On Top Magazine Archbishop of Canterbury responds to General Convention actions on … Austin American-Statesman

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Backers of Gay Marriage Rethink California Push

LOS ANGELES — Discouraged by stubborn poll numbers and pessimistic political consultants, major financial backers of same-sex marriage are cautioning gay rights groups to delay a campaign to overturn California’s ban on such unions until at least 2012.

Earlier this year, many supporters of same-sex marriage seemed eager to mount a 2010 campaign to overturn Proposition 8, which was passed by California voters in November and defined marriage as “between a man and a woman.”

But the timing of another campaign has since been questioned by several of the movement’s big donors, including David Bohnett, a millionaire philanthropist and technology entrepreneur who gave more than $1 million to the unsuccessful campaign to defeat Proposition 8.

“In conversations with a number of my fellow major No on 8 donors,” Mr. Bohnett said in an e-mail message, “I find that they share my sentiment: namely, that we will step up to the plate — with resources and talent — when the time is right.”

“The only thing worse than losing in 2008,” he added, “would be to lose again in 2010.”

The issue of when to go back to the polls was also the central topic at a contentious “leadership summit” held Saturday at a church in San Bernardino, east of Los Angeles, where about 200 gay rights advocates gathered to discuss their next step. It was the second large meeting of gay leaders since late May when the California Supreme Court ruled against a legal challenge to Proposition 8, which passed with 52 percent of the vote.

Shortly after the court’s decision, officials at Equality California, one of the largest gay rights groups in California, issued an online plea for donations for a possible 2010 campaign, citing a need to capitalize on anger over the decision and on the seeming momentum from the recent legalization of same-sex marriage in several other states.

But that thinking has apparently evolved.

Marc Solomon, marriage director for Equality California, said he spent June and early July asking the opinions of nearly two dozen California political consultants and pollsters and had been surprised by the almost unanimous opinion that a 2010 race was a bad idea.

“I expected having watched the protests and the real pain that the L.G.B.T. community had experienced that there would be some real measurable remorse in the electorate,” Mr. Solomon said, referring to lesbian, gay, bisexual and transgender people. “But if you look at the poll numbers since November, they really haven’t moved at all.”

A major factor in any California balloting, of course, is money; campaigns here are remarkably expensive, with a number of costly media markets. The Proposition 8 campaign, for example, cost more than $80 million, with opponents spending some $43 million.

Sarah Callahan, ch

See Backers of Gay Marriage Rethink California Push

New York Times

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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

Audio: Listen to this personal story on DW’s “Living in Germany” from July 13, 2009.

See Homosexuals dispel myth of “progressive” Germany Deutsche Welle

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Courts unlikely to strike down new domestic partner registry until after it begins

An attorney for those hoping to strike down Wisconsin’s new legal protections for domestic partners says he hopes the Supreme Court will decide their request in a matter of weeks.

But by then, gay couples will have already started registering at county courthouses for the benefits. Those sign-ups begin a week from Monday.

Three members of the Wisconsin Family Action group asked the Supreme Court yesterday to declare the domestic partner registry unconstitutional.

They say it violates the constitutional amendment against gay marriage and civil unions which group members helped pass in 2006.

The group calls it an effort to redefine marriage in Wisconsin. But a spokesman for Gov. Jim Doyle, who included the registry in the new state budget, says it’s just a set of basic protections, and it has nothing to do with promoting gay marriage.

Four of the seven justices would have to agree to take the case, and their new session does not begin until September.

See Courts unlikely to strike down new domestic partner registry until … Hudson Star Observer

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100 Nations Meet in Copenhagen to Celebrate and Fight for Homosexual Rights

COPENHAGEN, — This week, thousands of people from across the globe will arrive in the Danish capital Copenhagen to take part in the most important international event for homosexual, bi-sexual and transgender men and women – World Outgames 2009. On the agenda is one of the largest and most important conferences on homosexual rights the world has ever seen.

Nearly 100 nations will be represented, and up to 200,000 participants, tourists and Copenhageners are expected to take part in World Outgames 2009 from July 25 – August 2. Apart from focusing on human rights for nine days, a large number of theme festivals and an extensive cultural and sports program will make Copenhagen the place to be.

“By hosting World Outgames, Denmark will send a signal to the rest of the world that it should maintain focus on the right to love whomsoever one wishes, irrespective of gender and sexuality. From Northern Europe to South America, in Eastern Europe and the Far East, there are human rights battles to be fought – particularly for homosexuals. We hope that World Outgames and the thousands of people from around 100 different countries will be able to spread the message to the world,” says Uffe Elbaek, director of World Outgames 2009.

The heart of World Outgames is a major international human rights conference being held in close cooperation with Amnesty International and IBM focusing on the necessity that all people, irrespective of gender and sexuality should have equal rights.

“It is important for Copenhagen that issues concerning homosexual rights and tolerance can be discussed without prejudice. World Outgames enables us to pay tribute to the diversity and openness that is such an innate part of the city. We are greatly looking forward to welcoming participants and spectators,” says Lars Bernhard Jorgensen, CEO of Wonderful Copenhagen.

A great variety of cultural activities will take place in Copenhagen during the event. Cities such as Melbourne, Tel Aviv, Mexico City, Rio de Janeiro and Antwerp will contribute with music, entertainment, dance and much more. Sporting events throughout the city will include some 30 disciplines – such as ice hockey, beach volleyball and triathlon in Copenhagen’s harbor area. Apart from the cultural program and the sport events, the city will be awash with a large number of free activities.

Also, a gay cruise with 2,600 passengers will be docking at Copenhagen during World Outgames, and a mass blessing has been arranged at Copenhagen Cathedral offering gay couples special recognition by the Church to commemorate the 20th anniversary of legally recognized same-sex civil unions in Denmark.

Facts and additional information about homosexual rights in Denmark:
http://www.visitcopenhagen.com/factsheetWOG
Read more about World Outgames: http://www.copenhagen2009.org/
Official program: http://www.copenhagen2009.org/program
Download photos: http://www.copenhagen2009.org/photo