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.
Death penalty still in Uganda bill
The Guardian is reporting that, despite reports to the contrary, if the current “anti-homosexual” bill passes in Uganda, it will include the death penalty.
Please read the Guardian’s story in its entirety. It details a frightening backslide of gay rights in Africa, and traces the American origins of the Uganda bill.
Among …
Sask. appeal court asked whether commissioners can opt out of same-sex marriages
REGINA — The Saskatchewan government wants the province’s highest court to weigh in on proposed legislation that would allow marriage commissioners to not perform same-sex marriages if it is contrary to their religious beliefs.
Justice Minister Don Morgan said Friday that the government is referring legislative options to the Court of Appeal for its opinion on whether the proposals meet the requirements of the Charter of Rights.
“We’ve given the Court of Appeal two suggested options: one that we grandfather the existing marriage commissioners that are reluctant or refusing to perform a same-sex marriage, and the other one would be to create a religious exemption for those and for future marriage commissioners,” he said.
“It would require us to have two pools of marriage commissioners. One that would be willing to perform the same-sex marriage and one that would not.”
Whether officials can refuse to marry same-sex couples is the subject of a lawsuit and a complaint before the Saskatchewan Human Rights Tribunal – both of which are being heard by Saskatchewan Court of Queen’s Bench.
The complaint arose in 2005 when marriage commissioner Orville Nichols, a devout Baptist, told a gay couple he wouldn’t marry them because it went against his religious beliefs.
See Sask. appeal court asked whether commissioners can opt out of same … The Canadian Press
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Nevada governor follows through on threat to veto DP bill
CARSON CITY — As promised, Gov. Jim Gibbons on Monday vetoed the bill that would allow same- and opposite-sex couples to become legal domestic partners with many of the rights and privileges of married couples.
In his veto message, Gibbons said he rejected state Senate Bill 283 because it is contrary to the wishes of Nevada voters who in 2002 approved the Protection of Marriage constitutional amendment. That amendment stipulates a marriage may be between only a man and a woman.
But the governor said his veto should not be taken to mean he believes that “domestic partners are in any way undeserving of rights and protections.”
He said that on Saturday he signed a bill to prevent discrimination in public accommodations based on one’s sexual orientation.
“I am disappointed, but it wasn’t unexpected,” said state Sen. David Parks, D-Las Vegas, about the veto.
Parks, the bill’s sponsor, who is openly gay, said times have changed since the Protection of Marriage amendment, and some polls show strong public support for domestic partner legislation.
However, a Las Vegas Review-Journal poll conducted May 12-14 found that 50 percent of poll respondents opposed the proposal, with 38 percent favoring it and 12 percent undecided.
See * Nevada governor follows through on threat to veto DP bill
Las Vegas Review-Journal (5/26) Tags = gay men gay news lesbian news transgender bisexual
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Student appeals gay porn suspension
(Grove City, Pennsylvania) A student at a small Christian college in Western Pennsylvania is appealing his suspension after the school learned he had appeared in online gay pornography.
John Gechter, 22, was suspended by Grove City College because he “exhibited behavior contrary to the values” of the …
Pa. student appeals suspension for porn role Philadelphia Inquirer
A student who appeared in pornographic videos using a pseudonym is appealing his suspension from a Christian college in western Pennsylvania saying the off-campus job wasn’t the business of school officials.
John Gechter, 22, of Philadelphia said he needed the income from his roles in gay porn to pay for school but was suspended for one year from Grove City College, pending his appeal, after a student saw him in a video posted online.
“I absolutely believe this college violated my rights,” Gechter told The Allied News of Grove City. “They (suspended) me based on my occupation. I was not doing anything illegal.”
College spokeswoman Amy Clingensmith said Gechter was suspended because he “exhibited behavior contrary to the values” of the college.
“He also indicated he chose to participate in this behavior knowing it was incongruent with the policies, mission and values of Grove City College,” Clingensmith said.
Gechter told the newspaper he has been in about 15 gay porn scenes in the last two years using the screen name “Vincent DeSalvo.” In doing the work, he said, he flew to Chicago, Los Angeles, Miami and other places on the weekends.
Gechter, a senior majoring in molecular biology, said he started doing gay porn after he was referred to the industry through a modeling agency late in his sophomore year. See Pa. student appeals suspension for porn role Philadelphia Inquirer * Tags = gay men gay news lesbian news transgender bisexual
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Grassley: Think long-term in gay marriage fight
JOHNSTON, Iowa – U.S. Sen. Charles Grassley said conservatives opposed to the Iowa Supreme Court’s gay marriage ruling should focus on long-term planning.
Grassley acknowledged he’s taking a lower profile on the issue than some Republicans, but he said that’s because a bipartisan approach is needed.
Speaking Thursday night during a taping of the public television program “Iowa Press,” Grassley argued gay marriage opponents should look toward the next election and future legislative sessions.
“It ought to be thoroughly planned,” said Grassley. “I don’t think it should be planned for just this year or next year, because this Legislature is about over. I think you ought to plan what you are going to do for the next election, for the next Legislature.”
Democratic leaders in the Legislature have opposed beginning the process of amending the Iowa Constitution to overrule the state Supreme Court’s April 3 decision. Two consecutive General Assemblies must approve a proposed constitutional amendment before it could be put to voters.
Grassley said social conservatives should begin building the political base needed to deal with the court’s decision.
“If there’s going to be any action taken contrary to the Supreme Court’s decision, then it should be to seek as broad a consensus as possible,” he said.
The four-term Republican senator said gay marriage opponents should realize the issue doesn’t break along partisan lines.
See Grassley: Think long-term in gay marriage fight Chicago Tribune * Tags = gay men gay news lesbian news transgender bisexual
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Professional groups back gay marriage BurlingtonFreePress.com
Same-sex marriage rights got an endorsement Monday from four Vermont professional organizations who cited research findings that “children of lesbian and gay parents are as likely as those of heterosexual parents to flourish.”
They also said gay and lesbian parents are as likely as their heterosexual counterparts to provide healthy environments for children and that “there is no credible scientific evidence” relating parenting effectiveness to sexual orientation.
Their statement, which comes as the Vermont legislature prepares to consider same-sex marriage legislation, was released at a news conference called by the Vermont Psychological Association, the Vermont Psychiatric Association, the Vermont Association of Mental Health Counselors and the Vermont chapter of the National Association of Social Workers.
Speaking on the organizations’ behalf, Jackie Weinstock, an associate professor in the department of integrated professional studies at the University of Vermont, said the groups wanted to “set the record straight” by rebutting contentions by gay-marriage opponents that children raised by single-sex parents fare less well than their counterparts in heterosexual families.
“No study has shown that outcomes for children of single-sex families are any less positive than outcomes for children in heterosexual families,” Weinstock said. She said contrary findings sometimes cited by opponents apply in part to children of divorced parents, not exclusively to children of single-sex parents. She acknowledged that national studies of children in same-sex parents have been limited by small research samples. See Professional groups back gay marriage BurlingtonFreePress.com
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Study: Gay-friendly state politicians are better off
(New York City) A study released Tuesday shows that contrary to some political expectations, voting to support marriage equality for same-sex couples and opposing measures to limit marriage to opposite-sex couples has helped, rather than hurt, politicians.
A review of votes from 2005 to the present shows that legislators …
