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.”
Diocese of Niagara to offer same-sex blessings
As of Sept. 1, the diocese of Niagara will allow its priests to bless same-gender couples who have been civilly married.
Niagara becomes the second diocese in the Anglican Church of Canada, after the Vancouver-based New Westminster, to offer a sacrament for same-sex blessings. (The diocese of New Westminster, which allowed same-sex blessings in 2002, currently limits the rite to eight parishes.) The issue of same-sex blessings continues to deeply divide Anglicans in Canada as well as worldwide.
“The Niagara Rite is intended for the voluntary use of priests who wish to offer a sacrament of blessing regardless of the gender of the civilly married persons…” the diocese of Niagara said on its Web site, www.niagara.anglican.ca
The rite may also be used for the blessing or renewal of vows for couples “celebrating a significant moment in their married life together,” said an introduction to the Niagara Rite.
The approval of the rite came five years after the diocesan synod of Niagara passed a motion allowing civilly-married gay couples, “where at least one party is baptized,” to receive a church blessing. The diocesan bishop at that time, Ralph Spence, had refused to implement the motion. In January 2008, a similar motion was approved by Niagara’s diocesan synod, and this time, Bishop Spence gave his approval, but said he reserved the right to determine when the same-sex blessings would move forward.
Last fall, Bishop Spence’s successor, Michael Bird, informed a meeting of the Canadian house of bishops that he intended to develop the rite, saying, “I believe we are among those who have been called by God to speak with a prophetic voice on this subject.”
Under a list of protocols outlined by Bishop Bird, a cleric who wishes to offer the Niagara Rite must contact the bishop’s office “so that a conversation can take place between the bishop and the cleric involved.” The cleric is expected to provide details about the couple the cleric intends to bless “and should be prepared to have a conversation about the response of the parish to the blessings,” the list added. “A date for such a blessing should not be confirmed with the couple until after this conversation with the bishop has taken place.”
A parish is not required to get the approval of its vestry before it can offer such blessings.
Two other dioceses – Montreal and Ottawa – have also informed the house of bishops about their intention to move ahead with same-sex blessings. At that meeting, the house of bishops issued a statement saying that a “large majority” of its members could affirm “a continued commitment to the greatest extent possible” to a moratorium on the blessing of same-sex unions. But it acknowledged that the moratorium, which had been sought by the Archbishop of Canterbury and the primates of the Anglican Communion, would be difficult for some dioceses “that in confidence have made decisions on these matters.”
The issue of whether dioceses can offer same-sex blessings is likely to be revisited at the 2010 meeting of General Synod, the governing body of the Anglican Church of Canada. In 2007, General Synod had agreed that blessing rites for gay couples are “not in conflict” with core church doctrine, but refused to affirm the authority of dioceses to offer them. General Synod delegates had also voted to study revising the marriage canon (church law) to allow priests to marry all legally qualified persons. Marriage for gay people has been legal in Canada since 2005.
Last spring, Council of General Synod (CoGS), the church’s governing body in between General Synod meetings, decided not to ask General Synod 2010 to amend the marriage canon to allow for the marriage of same-sex couples. The decision was made after the faith, worship and ministry committee, which was asked by CoGS to prepare “a theological rationale to allow for the marriage of all legally qualified persons,” said that it found the request problematic. Janet Marshall, committee chair, told CoGS that some members felt uncomfortable about being asked to create a rationale for only one side of the argument.
See Diocese of Niagara to offer same-sex blessings
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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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Homosexual Haitian Migrants Focus of UA Doctoral Student’s Research
Erin Durban spent time in Haiti last year initiating her field research about individuals who immigrate to the United States. While there, she worked to immerse herself in the culture, which included learning about vévé, religious symbols used during rituals, from a Haitian vodou priest, Edouard Glissant.
Erin Durban, center, is making her second trip to Haiti to learn about the decisions homosexual Haitians make in immigrating to the United States, but then opting to return to their home country.
Erin Durban, a doctoral degree candidate in the UA’s gender and women’s studies department, will travel to Haiti to study the decisions homosexual Haitians migrants make when they leave for the U.S. but then return home.
As an undergraduate in Denver, Erin Durban began to study the conditions of Haitian immigrants and ways the United States has been embroiled in the history of the country.
Now a University of Arizona doctoral degree candidate in gender and women’s studies, Durban is studying the immigration of “queer-identified” Haitians who choose to leave for the United States, but then opt to return home.
Perplexing to Durban is the idea that the United States has a reputation for offering “more liberated spaces” to people around the world seeking asylum – whether for political, economic, religious reasons or because of sexual orientation – and yet certain populations of Haitians decide to return to a county that has offers little protection against sex-based discrimination.
Durban, whose research interests are in sexuality, migration and cultural studies as well as social and economic justice, said she is interested in studying way Haitians interpret the relationship between the United States and Haiti within the context of what is defined as “home.”
She recently received a Social and Behavioral Sciences Research Institute grant for her project, “Desire to Return, Desire to Leave: Investigating Queer Haitian Migration.” The institute, which operates out of the College of Social and Behavioral Sciences, promotes research in the college.
The project will take her later this month to the country of more than 9 million inhabitants, where she will spend several weeks conducting research in Jacmel and Port-au-Prince to better understand the complexities association with the migration of Haitians who are homosexual.
Her investigation, she said, may also help to shed more light on the ways in which economic, political and social interactions and pressures influence certain people.
One challenge she’ll face is the limited amount of information about homosexuals in Haitians, said Durban, who intends to publish an article about her research and incorporate her findings into her dissertation.
“Surprisingly, there is not a lot of research about queer migration in Haiti,” Durban said, noting that of existing literature and documentaries, most tend to focus on gay men or the vodou, or voodoo, religion, which tends to be more accepting of homosexuals.
The focus, too, tends to be on the turmoil in Haiti, considered the poorest country in the Western Hemisphere.
Durban’s interest in these issues was heighted about five years ago with the announcement of the United Nations’ Stabilization Mission in Haiti, a mandate established in response to armed opposition in the country. The United States is among the countries offering military and police personnel in the effort.
“Everywhere I went it seemed I was hearing about Haiti and I found it very strange that here is this place that is really close that no one ever really talks about,” she said. “But when they do, all we ever hear about is corruption, violence and disease.”
Durban said it is important to understand – outside of the typical contexts of violence and poverty – how gender and sexuality are shaping the experience of migrants.
She was encouraged to begin studying what she described as “the coexistence” of two seemingly conflicting beliefs about migration after visiting Haiti last year.
One belief describes the desire by gays and lesbians to leave Haiti for the more “progressive” United States, whereas another describes a strong desire to return to Haiti once in the United States because of a preference to live in their home countries.
Her research, she said, may help explain the role that family obligations, work-related struggles, the pursuit of citizenship, homophobia, the stigma associated with being an immigrant, “the heightened anti-immigrant fervor post-Sept. 11″ and other factors play in migrants choosing to leave the United States.
In her grant proposal, Durban noted that her research could potentially “rethink the idea of the United States as a site of ‘liberation’ for queer people of the world from a new vantage point.” Of particular concern are ways in which racism, xenophobia and homophobia affect and influence the decisions of Haitian migrants.
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Gay marriage stalls as RI lawmakers wrap up
PROVIDENCE, R.I. — Rhode Island seems almost certain to remain the only New England state that does not recognize gay marriage after measures legalizing same-sex unions stalled just before the part-time General Assembly ended the bulk of its annual work.
None of the bills legalizing same-sex marriage in Rhode Island advanced to a floor vote this session, continuing a trend begun in 1997.
The lack of State House action on gay unions means that Rhode Island is unlikely to allow same-sex marriage anytime soon, despite decisions this year by lawmakers in New Hampshire, Maine and Vermont to join Connecticut and Massachusetts in legalizing marriage equality.
“I was hoping the momentum that was going around New England and the support we had in the House would get enough representatives to ask for it,” said Rep. Frank Ferri (D-Warwick), who is gay and sponsored same-sex marriage legislation. He and his partner wed in Canada.
Equally disappointed were marriage equality opponents, who wanted voters to be able to decide whether the state constitution should be changed to ban gay marriage.
“I think that if you put it to the voters on a statewide basis, gay marriage would fail,” said Rep. Jon Brien, D-Woonsocket.
See Gay marriage stalls as RI lawmakers wrap up
Bay Windows
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Federal Judge Stresses Trial Record on Calif. Gay-Marriage Ban
Whatever Chief U.S. District Judge Vaughn Walker winds up deciding on Proposition 8, it’s clear he wants an airtight trial record to support it.
Holding his first hearing Thursday on the controversial measure that outlawed same-sex marriage, Walker repeatedly stressed the importance of establishing a record that will stand the test of time.
He told a packed courtroom that he was “reasonably sure” that the challenge launched by two high-profile litigators is “only touching down in this court” and merely a “prelude” for things to come.
“How we do things here,” Walker said, “is more important than what we do.”
He noted that other courts have rendered decisions on same-sex marriage without holding full trials, which he suggested was a “problem.”
Perry v. Schwarzenegger, 09-CV-2292, was filed in May by Theodore Olson, who represented George W. Bush in the landmark Bush v. Gore case, and David Boies, who represented Al Gore. Boies wasn’t present on Thursday. The suit attacks Prop 8 on equal protection and due process grounds.
Walker had already issued a tentative order allowing Prop 8 proponents to intervene and denying a preliminary injunction (pdf). He stood by both orders during Thursday’s 50-minute session.
Olson, a partner in Gibson, Dunn & Crutcher’s Washington, D.C., office who has argued before the U.S. Supreme Court 55 times, nonetheless made a fleeting attempt to persuade Walker to change his mind on the injunction.
“Every day that Prop 8 is enforced perpetuates a tragic injustice” on gays and lesbians, he argued, saying it “brands” them as “second-class citizens, unworthy and different.”
“The Supreme Court,” Olson argued, “has held again and again and again that the right to marry is the most important relationship in life.”
Representing the Prop 8 proponents, Washington attorney Charles Cooper, who was a top Justice Department lawyer during the Reagan administration, warned that the lawsuit could “sweep away” not only Prop 8, but the definition of marriage in 43 states and the federal government.
The Cooper & Kirk partner also argued that marriage has by tradition always been the union of a man and a woman, and said that every Supreme Court case that describes marriage has noted that its central purpose is procreation.
See Federal Judge Stresses Trial Record on Calif. Gay-Marriage Ban Above the Law
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Angry Gay Democrats Pull Support For DNC
The Obama administration’s decision to file a controversial brief on behalf of the Defense Of Marriage Act appears to have been the last straw for many gay and lesbians who were once enthusiastic supporters of the administration as well as the Democratic party.
Politico reports that the National Stonewall Democrats is the latest group to pull out of a June 25 Democratic National Committee fundraiser because of the Obama administration’s defense of DOMA and lack of action on gay issues.
The group said is “incredibly disappointed” in the party for a variety of reasons, including a perceived lack of support.
“The DNC has traditionally provided materials for the many Pride parades and festivals around the country to help educate the LGBT community about why the Democratic Party is the Party for full LGBT equality,” National Stonewall wrote in an e-mail, according to Politico. “This year, we were informed that we would not be receiving any materials or support for producing materials for the various nationwide Pride activities. These decisions were very disappointing.” See Angry Gay Democrats Pull Support For DNC
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Gay Dems complain DNC cut off funding, drop support for Biden event
Theboard of directors of the National Stonewall Democrats are dropping their support for a June 25 DNC fundraiser with Vice President Joe Biden over, they wrote in an email obtained by POLITICO, a combination of policy slights and the claim that they’ve been cut off from traditional party funding.
In the email to Tom Petrillo, who runs the party’s substantial gay fundraising operation, the board members write:
[W]e are incredibly disappointed that the DNC has made a decision to withhold any financial support to National Stonewall Democrats this year but is in turn asking us to help raise money for the DNC in a difficult financial environment. The DNC has historically supported National Stonewall through sponsorship of the annual Capitol Champions event. This year, we did not receive any support. The DNC has traditionally provided materials for the many Pride parades and festivals around the country to help educate the LGBT community about why the Democratic Party is the Party for full LGBT equality. This year we were informed that we would not be receiving any materials or support for producing materials for the various nationwide Pride activities. These decisions were very disappointing.
We’d be remiss to also not mention that the recent legal brief of the Obama Administration defending DOMA is incredibly hurtful. The members of the Board and our membership put our hopes, our dollars and our time into ensuring the election of Barack Obama because we believed that he supported us. To now have his Administration refer to our relationships in the same terms used by our long time enemies such as Pat Robertson, Jerry Falwell and James Dobson hurts on so many levels. To have our committed and loving relationships referred to as the moral equivalent of incest and pedophilia is not something that any of us ever expected from this Administration considering how hard we worked to be seen and respected. For that reason alone, advocating for attendance at a fundraiser to support the Administration and the DNC, while they have not condemned this hurtful language, is not something our membership will receive positively.
The group says it’s not “boycotting” the June 25 fundraiser with Joe Biden; it just won’t encourage its members to attend.
Gay money is, historically, of outsized importance to the Democratic Party. Howard Dean, in particular, launched his presidential campaign in part on enthusiasm from gay donors about his support for civil unions, and maintained those relationships as chairman. For update see Gay Dems complain DNC cut off funding, drop support for Biden event
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The cost of gay marriage – in dollars and cents
Provincetown, Mass. – Maghi Geary might have some peculiar advice for Californians: Gay marriage is good for business. The co-owner of Provincetown Florist has 20 to 30 weddings booked this summer, and the reason for that decent return is evident in the next customer who walks through the door – a lesbian couple from Kansas desperately in need of some carnations for their wedding.
Tuesday, the California Supreme Court made the most recent in a series of legislative and judicial decisions on gay marriage nationwide: It upheld Proposition 8, a measure that bans gay marriage in the state. But here in Massachusetts, gay marriage has been legal since 2003, and in Provincetown, more than 2,000 same-sex couples have tied the knot since then.
In some ways, this farthest fingernail of Cape Cod is emblematic of the economics of gay marriage: a big impact, but only at the margins.
Massachusetts estimates that gay marriage has added money to its coffers – but only about $37 million a year, or less than 1 percent of the annual state budget.
In the private sector, the wedding industry could grow by more than $16 billion if gay marriage were expanded to all 50 states, according to a 2004 study by Forbes magazine.
But Massachusetts’ experience suggests that money would be concentrated in cities with a significant gay population, like Provincetown. See The cost of gay marriage – in dollars and cents Christian Science Monitor
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