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.
Delaware is 21st state to pass lesbian-gay bias law
Dover, Delaware–State lawmakers sent a sexual orientation nondiscrimination bill to the governor on June 25, passing it through both houses of the legislature in only an hour.
The House passed the measure at 8:30 pm, shortly after the Senate passed an identical bill. In previous legislative sessions, the Senate killed the bill.
Rep. Pete Schwartzkopf, one of the bill’s champions, said that Gov. Jack Markell had expressed support for the measure
When Markell signs it, Delaware will become the 21st state with such a law. But, unlike seven similar state laws passed since 2002, Delaware’s does not include gender identity.
See Delaware is 21st state to pass lesbian-gay bias law
Gay People Chronicle
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Deleware Gay rights bill heads to full state Senate
The state Senate next week will debate a bill adding sexual orientation to Delaware’s anti-discrimination laws.
Newark-area Democrat David Sokola says he’s grateful Senate leaders let him offer his own version of the bill.
Audio Here
During the past 10 years, similar bills have reached the Senate only to die in committee or as the result of a so-called “desk-drawer veto”, but Senate Insurance Committee members Wednesday voted 5-0 to send Sokola’s measure, which has the support of Governor Markell and key House leaders, to the full Senate.
Sokola says he expects spirited opposition from the bill’s opponents, but is confident the measure will pass. See Gay rights bill heads to full state Senate
WDEL 1150AM -
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National Equality Rally at Independence Hall March for Equality on Independence Mall Sunday, May 3, 2009
PHILADELPHIA, PA — The National Park Service (NPS) has issued a First Amendment permit for a National Equality Rally at Independence Hall on Sunday afternoon, May 3, 2009 at Independence National Historical Park.
The goals of the National Equality Rally are:
– Passage of trans-inclusive hate crimes legislation and the Employment
Non-Discrimination Act (ENDA)
– Repeal of “Don’t Ask, Don’t Tell” and the Defense of Marriage Act
(DOMA)
– Support for GLBT health issues
– Equal benefits for same-sex families
– Same-sex marriage Equality
Regional, state and national organizations, people of color, progressive religious institutions, high school and college GSAs, and straight ally organizations will be represented as Co-Organizers. Over 100 organizations from across the nation will March for Equality on Independence Mall.
Leaders will carry their organization’s name on pole-mounted placards. Activists, participants and straight allies will be offered American and rainbow flags. After completion of the March for Equality, activists, organizations, and allies will fill in Independence Mall for a one-hour high-impact Rally.
Gay Pioneers Frank Kameny and Lilli Vincenz will lead grassroots activists, organizations, and straight allies in the March for Equality on Independence Mall from the National Constitution Center to Independence Hall.
The Rainbow Chorale of Delaware will open the Rally with a choral tribute, and 100 members of the Philadelphia Gay Men’s Chorus, Anna Crusis Women’s Choir and the Mendelssohn Club of Philadelphia will sing a special rendition of “America the Beautiful” to end the Rally.
The Philadelphia Freedom Band and members of the national Lesbian and Gay Band Association will join the March for Equality on Independence Mall. The Lesbian and Gay Band Association marched in President Obama’s Inaugural Parade. There will be participants from the New York Big Apple Corps, D.C.’s Different Drummers, North Carolina Pride Band, and Flamingo Freedom Band of South Florida, among others, marching past the Liberty Bell Center and the Gay Pioneers Historic Marker to Independence Hall.
Independence Hall and the Liberty Bell are where the Gay Pioneers held the first organized gay and lesbian civil rights demonstrations called “Annual Reminders” each Fourth of July from 1965 to 1969. The Annual Reminders laid the groundwork for the Stonewall Riots in 1969 and the first New York Pride Parade in 1970.
“Independence Hall and the Liberty Bell are where the movement was launched. With a new Congress and a President who describes himself as a ‘fierce advocate’ of our civil rights, it is the right moment for us to join hands at an iconic location to demand Equality,” stated Malcolm Lazin, Executive Director of Equality Forum.
Equality Forum is a national and international GLBT civil rights organization with an educational focus. The National Equality Rally at Independence Hall will be held on the concluding day of Equality Forum 2009 (April 27 to May 3), the largest and premiere annual national and international GLBT civil rights forum.
For more information about the National Equality Rally at Independence Hall, visit www.nationalequalityrally.org. For more information on gay-friendly Philadelphia or to book a hotel stay, visit the Greater Philadelphia Tourism Marketing Corporation’s website at www.gophila.com/gay.
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Delaware votes for gay rights
Two gay victories swept Delaware Thursday, when the state Senate defeated a constitutional ban on gay marriage and the state House passed a bill prohibiting discrimination based on sexual orientation.
Delaware already has a law limiting marriage to a man and a woman, and Senators expressed concern that the constitutional ban …
