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.”
U.N. AIDS chief in South Africa for World AIDS Day
(Johannesburg) The head of the U.N. AIDS program says South Africa is the ideal place for him to visit on World AIDS Day.
Michel Sidibe, speaking to The Associated Press in Johannesburg Monday, on the eve of World AIDS Day, says that while South Africa has more people infected with the …
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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House subcommittee approves benefits for same-sex partners
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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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‘Hate crime’ at Danish gay games
A Dane has been charged with committing a hate crime for allegedly throwing fireworks at athletes during a gay sporting event in Copenhagen.
He is accused of throwing fireworks into the Oesterbro stadium where the World Outgames running competitions were being held.
One US athlete suffered a light injury to his hand.
The attack marks the second suspected hate crime at the Outgames after three men were assaulted in the street.
In the stadium incident, the alleged perpetrator was apprehended by runners from the Sparta Athletes club as he attempted to escape.
See ‘Hate crime’ at Danish gay games
BBC New
* Tags = gay men gay news lesbian news transgender bisexual
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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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