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.”
IDs of gay partnership foes could be released next week
The names of people who signed petitions seeking to overturn Washington’s “everything but marriage” same-sex domestic partner law won’t be released publicly following a federal judge’s temporary restraining order.
Sponsors of Referendum 71 went to U.S. District Court in Tacoma Wednesday seeking the order. U.S. District Judge Benjamin Settle has set a full hearing on the matter for Sept. 3.
The names of everyone who signed Referendum-71 petitions are publicly available under open-government laws. A gay-rights group says it wants to post all the names online. But the R-71 campaign says that could lead to harassment.
Nick Handy, state elections director, said in a statement: “Referendum petitions become public records under the law once they have been turned over to us by sponsors. Our consistent practice has been to make these available upon public request. By early next week we will be in a position to make these available, and absent a court order, our intent has been to respond to public records requests in a timely way.”
Backers of R-71 turned in about 138,000 signatures Saturday. They need 120,577 valid voter signatures to qualify for the fall ballot.
Election officials suggest submitting about 150,000 signatures to offset any invalid signatures. Dave Ammons, spokesman for the secretary of state’s office, said usually about 18 percent of signatures checked turn out to be invalid.
The process of counting and verifying the signatures could go until the last week of August.
See IDs of gay partnership foes could be released next week Seattle Post Intelligencer
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LGBT health survey shows trouble spots
BOSTON. The largest survey to date comparing the health of the lesbian, gay, bisexual and transgender community to heterosexuals and non-transgender residents showed sharp health disparities.
The statistics:
In a survey of nearly 1,600 Massachusetts residents:
- Almost 31 percent of transgender citizens reported considering suicide in the past year, compared to just 2 percent for heterosexuals and 4 percent for gay or lesbian.
- Nearly 35 percent of transgender citizens said they were threatened with physical violence during their lifetime by an intimate partner, almost three times the rate of non-transgender residents.
- Just 45 percent of bisexual women said they had never had a mammogram, below the 59 percent of heterosexuals and 58 percent of lesbians.
- Bisexuals reported the most days binge drinking, having four or five drinks in a sitting an average of nearly two times in the past 30 days. Bisexuals also reported smoking marijuana nearly twice as often as heterosexuals.
See LGBT health survey shows trouble spots
Metro.us
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Will John Travolta Renounce The Church Of Scientology?
There’s a rumor going around that one of Scientology’s most powerful proponents, John Travolta, is looking to leave the draconian religion once and for all. After the year he’s had, it would make sense.
According to the Daily Mail – who rounded up some interesting quotes on the matter – it appears to be a very real possibility. To say Travolta’s had a rough go of it recently would be putting it very, very lightly.
On the business side of things, Travolta’s big role this year performed under studio expectations. An complete aside, when you consider his personal life:
His son Jett – reportedly autistic, a diagnosis the Church of Scientology refuses to dignify – passed away earlier this year. Travolta defied Scientology and acknowledged it. Some sleazy gossip website put together a theory that enlists the idea of Travolta not only having a gay lover, but the gay lover – his son’s nanny – being a primary cause of his son’s death. Which is besides the fact that someone tried to extort him over documents involved in his son’s transportation, and his wife might’ve tried (successfully) to get Roger Friedman fired by going to the top brass at Fox over Friedman’s comments on Scientology.
See Will John Travolta Renounce The Church Of Scientology?
Gawker
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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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Apple using double-standard for gay iPhone apps?
Apple is maintaining a double-standard when it comes to gay-themed iPhone apps, a developer claims. Attempting to draw publicity, Terry Ray claims that his iGaydar title was rejected from the App Store on the same day as Bruno — an app based on the Sacha Baron Cohen movie — was approved. iGaydar was rejected for “objectionable content,” despite being considerably less graphic than the Bruno app, according to Ray.
iGaydar pretends to detect a person’s sexuality, first displaying a random percentage and then announcing a tongue-in-cheek statement, such as “Honey, not even your priorities are straight.” By contrast the Bruno app lets users undress Cohen’s character, and touch various body parts which can elicit potentially offensive responses. Bruno is only on the App Store as a result of major studio backing and publicity, Ray charges.
Apple has rejected a number of apps with sex-related themes in the past, even when the titles did not show anything explicit. Naughty Loaded Dice was briefly blocked earlier in July, while an e-book reader, Eucalyptus, was temporarily blocked in May. Though only meant as general-purpose reading software, one of the books available for Eucalyptus is the Kama Sutra, a centuries-old Indian religious text that Apple deemed “inappropriate sexual content.”
See Apple using double-standard for gay iPhone apps?
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Original source : http://gay_blog.blogspot.com/2009/07/apple-using-d…
Lawsuit Challenges Wis. Domestic Partnership Law
Social conservatives asked the Wisconsin Supreme Court on Thursday to strike down the state’s new domestic partnership law, saying it violates a constitutional ban on gay marriage.
The lawsuit, filed by three members of Wisconsin Family Action, acknowledges the court will not have time to act before the law goes into effect next month but says justices should halt registrations as soon as possible.
Democratic Gov. Jim Doyle signed the law in the state budget last month. Starting Aug. 3, same-sex couples can register with counties to receive dozens of the same legal protections as married couples, including the right to inherit assets, make hospital visits and take medical leave to care for an ill partner.
Wisconsin became the first Midwestern state to enact legal protections for same-sex couples through the Legislature. It also became the first nationwide to allow domestic partnerships despite having a ban on gay marriage and any “substantially similar” relationships. See Lawsuit Challenges Wis. Domestic Partnership Law WCCO
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Minister defends decision not to fund gay arts festival
OTTAWA — Industry Minister Tony Clement says his government had to consider “regional fairness” when doling out stimulus money to big tourism events – and that’s why a gay arts festival in Montreal didn’t make the cut.
The organizers of Montreal’s Divers-Cite festival, which features gay and lesbian performers from around the world, said they were shocked to find out this week that their application for funding under the new program had been rejected.
They had been told by bureaucrats they had met all the rigorous criteria for their $155,000 bid – a fact not disputed by the government.
Director Suzanne Girard had initially scoffed at suggestions that ideology might be at play in handing out grants, but now says she suspects politics were involved.
After some Conservative caucus members complained last month that Toronto’s Pride Week had received $400,000, junior tourism minister Diane Ablonczy lost responsibility for the file.
But Clement said Wednesday there had been an “avalanche” of applications under the $100-million Marquee Tourism Events Program and decisions had to be made.
See Minister defends decision not to fund gay arts festival
The Canadian Press
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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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