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.

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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.”

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Prosecutors drop case against gay couple accused of trespassing on LDS property

Prosecutors won’t pursue a case against two men accused of trespassing on LDS Church property earlier this month.

An LDS Church security guard detained a gay couple on Salt Lake City’s Main Street Plaza on July 9 after observing the pair “kissing and hugging,” according to a police report.

Derek Jones and Matt Aune were cited for trespassing after refusing to leave. The incident led to two kiss-in protests against the church in Salt Lake City and one in San Diego.

Aune has said the couple’s display of affection was modest, but officials with The Church of Jesus Christ of Latter-day Saints, which owns the plaza, released a statement that the two men were “much more involved” than a “simple kiss on the cheek.” It said the couple “engaged in passionate kissing, groping, profane and lewd language, and had obviously been using alcohol.”

In a statement released Wednesday, Salt Lake City Prosecutor Sim Gill said the trespassing case against Jones and Aune has been dropped.

Gill said despite that Main Street Plaza is owned by the church, there “continues to be a mistaken belief by many visitors that there is a public right of way.”

See Prosecutors drop case against gay couple accused of trespassing on Salt Lake Tribune -

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‘Two-Track’ Church Suggested by Archbishop of Canterbury

PARIS — The Most Rev. Rowan Williams, the archbishop of Canterbury, said profound differences among the world’s 77 million Anglicans over gay clergy and same-sex unions could divide their church into a “two-track model” yielding “two styles of being Anglican.”

The formula could avert a formal breach between liberals and conservatives but bring new strains in the relationship between the global Anglican Communion and American Episcopalians who resolved this month to open the door to ordaining openly gay bishops and to start the process of developing rites for same-sex marriages.

Archbishop Williams insisted that the issue should not be debated “in apocalyptic terms of schism and excommunication but plainly as what they are — two styles of being Anglican.”

In a lengthy message published Monday on his Web site, the archbishop offered a detailed and nuanced response to events at the Episcopal convention in Anaheim, Calif., this month when gay-rights advocates in the United States chalked up major victories over conservatives on sexual issues. The Episcopal Church is the official branch of the Anglican Communion in the United States.

The developments were seen by liberals and conservatives as likely turning points in the history of the divided Episcopal Church, reflecting the profound rifts over sexual issues within Anglicanism — the world’s third largest network of Christian churches after the Roman Catholic and Orthodox Churches. The differences have crystallized around the Episcopal Church’s consent in 2003 to the consecration of the church’s first openly gay bishop, V. Gene Robinson of New Hampshire.

The Episcopalians had agreed to a moratorium on the election of gay bishops, but it was lifted at the convention in Anaheim.

The archbishop of Canterbury is the spiritual head of the Anglican Communion, which is composed of 38 provinces worldwide. The Episcopal Church claims about 2.3 million members.

In his message, Archbishop Williams repeated his view that “a blessing for a same-sex union cannot have the authority” of the full Anglican Communion, any more than a blessing for a heterosexual couple living outside marriage would have.

That, in turn, means that as long as the broader church “as a whole does not bless same-sex unions, a person living in such a union cannot without serious incongruity have a representative function in a Church whose public teaching is at odds with their lifestyle.”

The issues have confronted the archbishop with deep divisions not simply between liberals and conservatives in the United States but also across the broader church with its many followers in Africa, Britain and elsewhere. Four conservative dioceses in the United States and many individual Episcopal churches have broken away from the national denomination to forge alliances with conservative Anglican groups such as the Anglican Church of Nigeria.

Archbishop Williams said: “There is at least the possibility of a twofold ecclesial reality in view in the middle distance: that is, a ‘covenanted’ Anglican global body, fully sharing certain aspects of a vision of how the Church should be and behave, able to take part as a body in ecumenical and interfaith dialogue; and, related to this body, but in less formal ways with fewer formal expectations, there may be associated local churches in various kinds of mutual partnership and solidarity with one another and with ‘covenanted’ provinces.”

The archbishop has promoted the idea of covenant — described by some analysts as a kind of good-behavior guide for churches — to overcome the rift.

“This has been called a ‘two-tier’ model, or, more disparagingly, a first- and second-class structure,” the archbishop’s message said. “But perhaps we are faced with the possibility rather of a ‘two-track’ model, two ways of witnessing to the Anglican heritage, one of which had decided that local autonomy had to be the prevailing value and so had in good faith declined a covenantal structure.”

The message continued: “It helps to be clear about these possible futures, however much we think them less than ideal, and to speak about them not in apocalyptic terms of schism and excommunication but plainly as what they are — two styles of being Anglican, whose mutual relation will certainly need working out but which would not exclude cooperation in mission and service of the kind now shared in the Communion.”

See Anglican Sees ‘Two-Track’ Church @ New York Times

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A group has filed a complaint against the first openly transgender U.S. mayor, Mayor Stu Rasmussen, for violating the Silverton, Ore. City council’s dress code.

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(San Diego) A judge granted a sentencing delay last Tuesday to a man who assaulted a lesbian musician while she hugged her girlfriend. The lawyer for Vinzen Matthew Williams, 21, sought the delay.

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Gay activists and union leaders commit to year two of Hyatt Boycott

At a press conference last Friday, GLBT activists and union leaders marked the one-year anniversary of the Manchester Hyatt Boycott, launched last year in response to hotel owner Doug Manchester’s $125,000 contribution to qualify Proposition 8 for the ballot.
“For over a year we have urged San Diegans, Californians and Americans to boycott the Manchester Hyatt because of Manchester’s contribution to Proposition 8 and onerous workloads for the hotel’s housekeepers,” said Cleve Jones, a national gay leader and former aid to slain San Francisco supervisor Harvey Milk. “The hotel’s own people have admitted to losing over $7 million in business due to the boycott. This boycott has truly shown the power of our reenergized community and the alliance between the gay community and labor.”
Proposition 8 eliminated the right of same-sex couples to marry in California. Boycott organizers also committed to continue the boycott and expand its scope.
“One of our goals for the next year will be to take the boycott to the next level – global,” said Fred Karger, founder of Californians Against Hate. “We will ask travel planners and tour operators throughout the world not to book meetings and room nights at the Manchester properties. We will put up a virtual bright yellow caution tape around Manchester’s hotels, and ask people not to cross it.”
The boycott has drawn increasing media attention and picked up steam since it began. Early on, several groups announced that they would move or cancel events at the hotel. Recently, the American Association of Justice, a trial lawyers group moved its entire convention out of the Manchester Hyatt to San Francisco to honor the boycott. At a recent gay and lesbian travel exposition, a hotel spokesperson confirmed that the boycott has cost the hotel more than $7 million.
At the July 17 press conference, organizers unveiled more than just a new approach. They came with a new logo and visual aid – bright yellow caution tape reading “Do not cross. Do not support bigotry and discrimination.” Organizers say the caution tape is intended as a reminder for individuals throughout the country not to patronize the hotel.
“We want to send a very simple message to all those planning to travel to San Diego that the Manchester Hyatt Boycott is on and stronger than ever,” said Human Relations Commissioner, Nicole Murray-Ramirez. “The unions, hotel workers and gay community started this fight together and we intend to finish it together.”

See Gay activists and union leaders commit to year two of Hyatt Boycott

Gay and Lesbian Times

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Military Gay Discharge Moratorium Bill A Non-Starter

New York Senator Kirsten Gillibrand has decided not to pursue a senate amendment that would pause military discharges based on sexual orientation, gay weekly the Washington Blade reported.

Gillibrand, the freshman senator appointed by Governor David Paterson after President Obama tapped Hillary Clinton to head the State Department, signaled last week she would introduce the reform as an amendment to a Defense Department reauthorization bill.

The amendment would place an 18-month moratorium on the military gay ban, also known as “don’t ask, don’t tell,” the law that prescribes discharge for gay and lesbian service members who do not remain celibate or closeted.

See Military Gay Discharge Moratorium Bill A Non-Starter On Top Magazine -

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Sailor arrested in Camp Pendleton shooting death of seaman

SAN DIEGO – A sailor was charged Thursday with fatally shooting and burning Seaman August Provost during an alleged burst of crime June 30 at Camp Pendleton.

In announcing the charges, Navy officials suggested that Petty Officer 2nd Class Jonathan Campos killed his victim indiscriminately. They again said there’s no evidence of a hate crime against Provost, who was gay, or of gang-related activity.

Campos, 32, of Lancaster, had served with Provost on Assault Craft Unit 5. He faces 16 charges, including murder, arson, unlawful entry, theft of military property and wrongful possession of a firearm, Capt. Matt Brown, a spokesman for Navy Region Southwest, said during a news conference Thursday afternoon at the San Diego Naval Base.

The Navy hasn’t announced a date for Campos’ pretrial hearing, called an Article 32 hearing.

See Sailor arrested in Camp Pendleton shooting death of seaman

San Diego Union Tribune

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Effort To Ban Gay Unions Falling Short In Wash. State

The effort to place a gay-inclusive domestic partnership law up for a vote in Washington State appears to be falling short.

With a looming deadline of Saturday at 2PM, opponents of the law dubbed by the media as the “everything but marriage law” have only 4 full days left to gather thousands of valid signatures.

Opponents – a coalition of mostly religious groups – announced their attempt to repeal the bill in November, even before it became law in May. Gary Randall, president of the Faith and Freedom Network, says his group filed Referendum 71 because the law is too close to marriage and violates the law.

“The bill … elevates homosexual relationships to that of traditional marriage, thus eliminating any legal difference between domestic partnerships and marriage,” Randall wrote in a blog entry posted on the group’s website before the bill became law.

“I do not believe a majority [of] Washingtonians believe in homosexual marriage, nor do they want to become a national attraction for homosexuals from other states and countries,” he added.

Organizers, however, admit that they have fallen desperately behind in collecting the 120,577 valid signatures needed to qualify the measure. Randall told the conservative group Concerned Women for America that only 75,000 signatures had been collected as of Friday. Leaving the group at least 45,577 signatures short. But in order to ensure there are sufficient valid signatures, the group estimates it needs to collect 75,000 signatures. In other words, opponents need to collect as many signatures in one week as they did in the previous seven to eight weeks.

The Democratic-controlled House passed the bill in April along a mostly party-line vote of 62 to 35. Senators approved the bill in March with a 30 to 18 vote, and Governor Chris Gregoire signed the bill into law on May 18. See Effort To Ban Gay Unions Falling Short In Wash. State

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