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.
`Up in the Air’ leads Golden Globes with 6 noms
(Beverly Hills, Calif.) The recession-era tale “Up in the Air” leads Golden Globe film contenders with six nominations, among them best drama and acting honors for George Clooney, Vera Farmiga and Anna Kendrick.
Other drama picks are the space fantasy “Avatar,” the Iraq War tale “The Hurt Locker,” the World War …
House subcommittee approves benefits for same-sex partners
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Obama names Medal of Freedom recipients, including Harvey Milk …
President Obama, attempting to spotlight those who have acted as “agents of change,” today announced that he will bestow the Presidential Medal of Freedom, the country’s highest civilian honor, on a cast of living and deceased figures widely known in politics, the arts and sciences, sports and social movements.
The 16 honorees named by the White House today include Harvey Milk, the San Francisco city supervisor who led an early movement for gay rights in public life and was assassinated. They include the late Republican Congressman Jack Kemp, a football legend as well, and the ailing Democratic Sen. Edward M. Kennedy of Massachusetts.
The president’s choices, who will be honored at a White House ceremony Aug. 12, include American civil-rights activist the Rev. Joseph Lowery and South African freedom fighter Desmond Tutu. They include a pioneer in sports for women, tennis star Billie Jean King, and the first woman on the Supreme Court, retired Justice Sandra Day O’Connor.
They include actor Sidney Poitier and singer Chita Rivera.
See
Obama names Medal of Freedom recipients, including Harvey Milk …
They include actor Sidney Poitier and singer Chita Rivera.
See
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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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Gay professor Simon Karlinsky dies
Simon Karlinsky, an openly gay distinguished professor in the Slavic Languages and Literatures Department at the University of California, Berkeley, and an expert on the history of homosexuality in Russia, died July 5 due to congestive heart failure. He was 84.
Mr. Karlinsky’s death was announced by his husband, Peter Carleton. The couple lived in Kensignton.
For more than 30 years Mr. Karlinsky taught at UC Berkeley. He was an author and editor of books on Gogol, Nabokov and Chekov, and an internationally known expert on the history of homosexuality in Russia.
He was born on September 22, 1924 in the city of Harbin, a Russian cultural outpost in Manchuria (now China).
See Gay professor Simon Karlinsky dies
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Militias target some Iraqis for being gay
“I’m not a terrorist,” he tells the Iraqi police who surround him. “I want you to know I am different. But I am not a terrorist.”
To some fundamentalist Iraqi Muslims, Ahmed Sadoun Saleh was worse than a terrorist.
He was gay. He wore his hair long and took female hormones to grow breasts. Amused by his appearance, Iraqi police officers stopped him in December at a checkpoint in a southern Baghdad neighborhood dominated by radical Shiite militias. They groped Saleh and ridiculed him.
The assault was captured on video and circulated on cellphones throughout Baghdad, says Ali Hili, founder of London-based Iraqi LGBT, a group dedicated to protecting Iraq’s gays and lesbians. Shortly after the video was made public, Hili says Saleh contacted him, fearing for his life, and asked for his help to flee Iraq.
“Unfortunately, it was too late,” Hili says. Saleh turned up dead two months later, he says.
At least 82 gay men have been killed in Iraq since December, according to Iraqi LGBT. The violence has raised questions about the Iraqi government’s ability to protect a diverse range of vulnerable minority groups that also includes Christians and Kurds, especially following the withdrawal of U.S. combat troops from Iraqi cities last month.
Mithal al-Alusi, a secular, liberal Sunni legislator, is among those who blame the killings on armed militant groups such as al-Qaeda and the Mahdi Army militia.
See Militias target some Iraqis for being gay
USA Today
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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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Wash. gay partnership foes try to shield signers
State officials won’t resist a temporary restraining order that would block public release of petition signatures for a gay-partnership referendum.
The case centers on Referendum 71, which would ask voters to approve or reject expanded partnership rights for gay couples.
The names of everyone who signed R-71 petitions are publicly available under open-government laws.
A gay-rights group is planning to post all the names online, so partnership supporters can talk to those people about the referendum.
But the R-71 campaign says that could lead to harassment. So they’re asking a federal judge to keep the petitions secret, until they can make their argument in court.
See Wash. gay partnership foes try to shield signers
Seattle Times
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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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