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.”
President Obama to Bestow Presidential Medal of Freedom on Harvey Milk
San Francisco – Today President Obama announced that he will honor assassinated civil rights leader Harvey Milk with the Presidential Medal of Freedom, the nation’s highest civilian honor recognizing significant contributions to the nation and the world. The President will also honor Senator Edward Kennedy and tennis legend Billie Jean King, an open lesbian and longtime champion for the rights of the lesbian, gay, bisexual, and transgender (LGBT) community, with the Medal of Freedom on August 12.
Last year, EQCA sponsored the first bill in the country to officially honor Milk, the nation’s first openly gay man elected to major political office, but the Governor vetoed it. Senator Mark Leno (D-San Francisco) introduced the Harvey Milk Day bill, sponsored by EQCA, again this year. The legislation would require the governor to annually proclaim May 22 as Harvey Milk Day, designating it as a “day of special significance,” to recognize Milk’s work to secure equal protections.
Equality California (EQCA) is the largest statewide lesbian, gay, bisexual, transgender-rights advocacy organization in California. In the past decade, EQCA has strategically moved California from a state with extremely limited legal protections for LGBT individuals to a state with some of the most comprehensive civil-rights protections in the nation. EQCA has passed over 50 pieces of legislation and continues to advance equality through legislative advocacy, public education and community empowerment. www.eqca.org
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Human Rights Campaign Calls on the LGBT Community and Allies to Participate in National, Grassroots Push to Lobby Congress Face-to-Face
The Human Rights Campaign, the nation’s largest lesbian, gay, bisexual and transgender (LGBT) civil rights organization, today launched a national, grassroots campaign called “No Excuses” to demand action from Congress on key issues of equality. Designed to take advantage of the congressional summer recess, when members are in their local offices and meeting with constituents, “No Excuses” will mobilize HRC’s 750,000 members and their allies to meet directly with lawmakers and push for federal legislative change. Members and supporters can get involved by visiting: http://noexcuses.hrc.org.
“While we salute and acknowledge the heroic members of Congress who have worked tirelessly on our behalf, far too many have dragged their feet on basic matters of fairness and equality that have lingered too long and hurt too many LGBT people and their families,” said Human Rights Campaign President Joe Solmonese. “Yes, there are many challenges facing this Congress and this president. But LGBT people often face additional hardship protecting their families, their loved ones and their jobs, and too few in Congress are willing to champion these issues of basic fairness. Now, more than ever, members of the LGBT community need to make their voices heard face-to-face and in the districts where they live.”
Using innovative online tools, one-on-one trainings and staff and volunteer follow-through, HRC members will press lawmakers to end discrimination in the military, treat all legally married couples equally, pass immigration reform that recognizes and honors LGBT families, outlaw workplace discrimination for LGBT employees, and treat all federal employees’ compensation equally.
The interactive “No Excuses” website allows supporters to download a meeting toolkit, schedule a meeting and report back on how it went. To take action, visit: http://noexcuses.hrc.org.
The in-district meetings will focus on the following key legislative priorities in the 111th Congress:
–Repeal the Defense of Marriage Act (DOMA), which denies legally married lesbian and gay couples more than 1,000 federal protections;
–Prohibit workplace discrimination for the LGBT community by passing an inclusive Employment Non-Discrimination Act (ENDA);
–Repeal “Don’t Ask, Don’t Tell” to ensure that service members who contribute to our nation’s security are no longer summarily discharged for who they are;
–Pass immigration reform that recognizes permanent same-sex couples and ends the painful separation of families;
–And provide health benefits equally to the nearly 3 million federal government employees, including same-sex domestic partners.
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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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Chicago HIV report sparks reaction
The Chicago Public Health Department’s alarming report, released Friday, that suggests the HIV infection rate among gay men in Chicago is nearly 20% has drawn varied responses from Chicago’s gay and lesbian community.
ChicagoPride.com surveyed a number of gay men on a busy Saturday night in Boystown.
From Waveland to Buckingham, the responses were varied with one common undertone that gay men no longer think HIV is a death sentence. And despite extensive media coverage on the recently release report, many were unaware of the report and its contents.
“I’m not at all surprised by these statistics.” Said thirty-something Al joined by Jared and Jamie outside of the Center on Halsted. “The fact that a lot of our own community members are not aware of their status is probably because of their fear of knowing.”
“We are very closeted in the U.S. regarding educating our youth,” added Jaime.
Some do not believe the numbers and conclusions published in the report.
“You can work the numbers however you want,” said Matthew a bartender at Buck’s. See Chicago HIV report sparks reaction
ChicagoPride.com –
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HBO RANKS HIGHEST IN THIRD ANNUAL “GLAAD NETWORK RESPONSIBILITY INDEX”
ABC Leads Broadcast Networks for Third Year in a Row; NBC and CBS Receive “Failing” Grades for Lack of Inclusion of the LGBT Community
Los Angeles, CA, July 27, 2009 – The Gay & Lesbian Alliance Against Defamation (GLAAD) today released its third annual Network Responsibility Index, a report that maps the quantity, quality and diversity of images of lesbian, gay, bisexual and transgender (LGBT) people on television. Primetime programming on the five broadcast networks was evaluated as well as original primetime programming on 10 of the highest-rated cable networks.
HBO scored the highest rating of the 15 networks evaluated with LGBT characters on shows including True Blood, The No. 1 Ladies Detective Agency and Entourage that reflect the ethnic and racial diversity of the LGBT community. Of HBO’s 14 original series, 10 included LGBT content and 42 percent of the network’s total programming hours included LGBT representation.
“This year programming was not only inclusive of LGBT people, but networks like HBO are beginning to reflect the broad diversity within our community,” said Rashad Robinson, Senior Director of Media Programs at GLAAD. “With upcoming fall programming and new storylines there is a tremendous opportunity for networks to share the stories of all members of our community including lesbian, bisexual and transgender people as well as LGBT people of color, all groups which continue to be underrepresented across all networks.”
GLAAD reviewed a total of 4,901 hours of primetime programming for inclusion of LGBT characters or issues on the five major networks (ABC, CBS, The CW, Fox and NBC) from June 1, 2008 to May 31, 2009. GLAAD also examined 1,212.5 hours of original primetime programming on 10 highly-rated cable networks. Each hour was reviewed for on-screen LGBT representations. Based on the quantity, overall quality and diversity of these representations, a rating was assigned by GLAAD’s Entertainment Media Program to each network: Excellent, Good, Adequate, or Failing.
Additional findings from the GLAAD Network Responsibility Index:
Good
- HBO and Showtime received grades of Good, with HBO leading with 42 percent of programming hours featuring LGBT representations.
- ABC, with shows including Brothers & Sisters, Grey’s Anatomy and Ugly Betty, again received the highest ranking of the five broadcast networks, earning a Good grade with 24 percent of their primetime programming hours including LGBT representations.
- The CW also received a grade of Good, with 20 percent of their primetime programming hours including LGBT representations.
Adequate
- While Fox received an Adequate, rising from last place and a Failing grade in 2008; 11 percent of its programming hours were LGBT-inclusive, yet some of those hours included problematic content.
- Among cable networks evaluated, TNT showed the largest growth, jumping from one percent of LGBT inclusive primetime programming hours last year to 19 percent. FX posted the sharpest decline, dropping 32 percent over the previous season. Both were graded
Failing
- NBC and CBS received Failing grades, for their 8 and 5 percent, respectively, of programming hours with LGBT images. CBS moved down from third place in last year’s GLAAD Network Responsibility Index to last among the five major broadcast networks.
- A&E, Sci Fi and TBS received grades of Failing.
“Television shows that weave our stories into the fabric of the series present richer, more accurate representations and are the kinds of images that help Americans understand and embrace their LGBT family members, friends and neighbors in a more meaningful way,” said Robinson.
The third annual GLAAD Network Responsibility Index was delivered to programming executives at the 15 graded networks, and GLAAD’s Entertainment Media Program will continue discussions with them to advocate for improvements in the quality, quantity and diversity of their LGBT representations.
The Executive Summary of the report can be viewed online at GLAAD.org. A PDF of the full report can also be downloaded at GLAAD.org.
The 14th Annual GLAAD Where We Are On TV report on diversity will be issued in September 2009. This analysis will examine LGBT inclusion as well as the gender and race/ethnicity of all scripted characters scheduled to appear during the 2009-2010 season.
About GLAAD
The Gay & Lesbian Alliance Against Defamation (GLAAD) is dedicated to promoting and ensuring fair, accurate and inclusive representation of people and events in the media as a means of eliminating homophobia and discrimination based on gender identity and sexual orientation. For more information, please visit www.glaad.org.
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DeFrank Center’s boss knows a challenge when he sees one in San Jose
Paul Wysocki was about to show me the drop-in center for youth at the Billy DeFrank Center when the silent burglar alarm went off. Wysocki fiddled with the box to accept his code and wound up calling the alarm company, telling them all was fine. “There’s usually a little lag time before they call the police,” he explained. The situation bore more than a little irony. As interim executive director, Wysocki is sounding the public alarm for the center, San Jose‘s gathering place for the gay, lesbian, bisexual and transgender community. But he has no lag time. Last week, he dispatched an e-mail that bluntly said the center would have to close its doors by Sept. 1 unless it raises $50,000. Wysocki hopes to coax backers to sign up for continuing contributions that would total $20,000 a month. “We had been talking about what we needed to do to get people’s attention,” said the red-haired 60-year-old, an exuberant and funny man who has become an expert in turning around nonprofits. “We decided we had to hit them right between the eyes.”
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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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Gay marriage and the date debate
Nearly nine months after California voters banned same-sex marriage in the state, gay marriage supporters are ready to ask them to overturn Proposition 8. They’re just not sure when to ask: In November 2010 or November 2012. Choosing a date involves more than sifting through the polling, community meetings and consultants’ reports that have filled the time since last fall’s election with soul-searching and finger-pointing among supporters, culminating in a meeting of the movement’s leaders Saturday in San Bernardino. Generating enthusiasm for a grassroots campaign will also be a heart-based decision, one that has split same-sex couples even in Kern County, where 75 percent of voters backed Prop. 8. Bakersfield resident Jade Haley wants an initiative in 2010. Her partner Alee Gamino thinks that’s too soon. Gamino’s Catholic mother still refers to Haley as “she” and has no contact with them as a couple, who are raising Gamino’s teenage daughter from a previous relationship. On Sundays, Gamino, 34, goes to church twice. She attends a Catholic service solo with her mom in the morning and goes to a Metropolitan Community Church with her partner in the evening. “The churches have thousands and thousands of people ready to go against us,” said Gamino. She looked at 70 people who came to a Unitarian Universalist Church on Thursday to talk about the movement’s next step. “All we have is what’s in this room.” Still, Gamino was among only a dozen people at the Bakersfield meeting called by Marriage Equality USA who supported waiting until 2012. The sentiment for a vote next year echoed one at a similar gathering in San Francisco, while gatherings in liberal bastions such as Oakland and Berkeley leaned toward 2012. “The reaction was really mixed,” said Pam Brown, Marriage Equality USA’s political director, who compiled information from the organization’s “Get Engaged” tour of 40 California cities over the past several weeks. “A lot of people who wanted to wait until 2012 wanted to see what the plan was first before they committed.” A nonbinding straw poll of leaders gathered Saturday in San Bernardino to plan the movement’s next step found that 93 people voted to go in 2010, 49 in 2012 and 20 were undecided. Organizers expect to officially decide when to return to the ballot in a couple of weeks. If they decide on November 2010, the deadline to have ballot language submitted to the attorney general is Sept. 25. This month, several groups of same-sex marriage supporters said not enough has been done to address the faults of last year’s campaign in time to mount a winning drive next year.Churches’ influence
Faults not addressed
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