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.
Russian gays express disappointment in Clinton
(Moscow) Russia’s leading gay activist said Wednesday that he was disappointed that Secretary of State Hillary Rodham Clinton met with an outspoken foe of gay rights during her two-day trip to Russia and did not decry homophobia in the country.
Clinton attended a ceremony unveiling a statue of Walt Whitman at …
Our Genders, Our Rights
NEW YORK, NY - – - The Issues Magazine launched “Our Genders, Our Rights,” its Summer 2009 edition. A unique combination of articles, poetry, art and videos focus on a topic that is both utterly fundamental and wildly revolutionary: gender norms and gender identity.
Top writers discuss sex-selection abortion, gender expression, “Intersex” self-identification and a first-hand account of forced sex roles inside a polygamist compound in Texas.
Publisher and Editor-in-Chief Merle Hoffman’s editorial, “Selecting The Same Sex,” provides philosophical and personal insights into the issue of sex-selection abortion.
“There is one place where the definition of gender remains binary — in the womb. When it comes to sonograms, amniocentesis and standard pre-natal testing, there are no nuances. Here, the pronouncement, ‘It’s a girl,’ can translate into fierce and instant parental rejection. The fact is that when the issue is ‘sex selection abortion,’ the same sex is always being selected — female.” For Hoffman, this issue highlights questions of ethics, human rights and the moral autonomy of women.
“It’s about separating the chooser from the choice,” writes Hoffman.
In “Busting Bogus Biology and Beliefs” Mahin Hassibi notes: “For centuries, social constructs held that women owed allegiance and obedience to their husbands; children were the property of their fathers, who owned the children’s mothers.” Today, Hassibi says, discoveries in biology and reproductive technology may soon trump historical and cultural restrictions that wrongly limited women’s lives.
“My children would have undoubtedly been among the 439 seized in the raid,” writes Carolyn Jessop of the sweep through the polygamist compound. In, “American Taliban: Sect Controls Women’s Destinies,” Jessop gives an inside view of the abuse, misogyny and control of women’s bodies that continues today.
Writers also plunge into transgender concerns. “Asylum Pitfalls May Await the Transgender Applicant” by Victoria Neilson discusses the difficult process for trans applicants in the U.S. Eleanor Bader’s “Trans Health Care Is a Life and Death Matter” describes a pioneering feminist health program for trans patients in the South.
Photographic performer Tammy Rae Carland visualizes gender fluidity as the featured artist, and art editor Linda Stein conducts an interview with Elizabeth Sackler, whose passion for feminist art resulted in a new center at the Brooklyn Museum.
ABOUT US
On The Issues Magazine (www.ontheissuesmagazine.com) is a progressive, feminist, quarterly online magazine. Read more at the site — free and with archives from 1983. Merle Hoffman is the Publisher and Editor-in-Chief.
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Gay incident reopens Salt Lake City’s Main Street plaza wounds
It’s the wound that won’t heal. The rift that won’t close. And earlier this month, two gay lovers’ purportedly innocuous late-night kiss — though LDS Church officials insist it was far more amorous than that — ripped it wide open. Utah’s simmering religious divide boiled over — once again — at the geographical and philosophical intersection of church and state: the Main Street Plaza in downtown Salt Lake City. “It is a scab that will continue to be peeled away — and may never heal,” says Dani Eyer, the former ACLU director who fought to preserve First Amendment rights on the plaza. Matt Aune and Derek Jones say they held hands, kissed and then squabbled with security guards on the LDS Church-owned square. Salt Lake City police issued a ticket for trespassing. In protest, supporters of the couple staged a “kiss-in” last Sunday outside the plaza and plan another such demonstration today. The LDS Church — a faith to which 60 percent of Utahns belong — defended its right to regulate “inappropriate behavior” on the plaza. “What we’re seeing now is a manifestation of what should have been obvious from the very beginning,” says former Salt Lake City Mayor Rocky Anderson. “This block of Main Street never should have been conveyed to the LDS Church. It was a recipe for ongoing resentments between the LDS Church and those who are not members.” The church bought the strip of Main — from North Temple to South Temple — in 1999 after then-Mayor Deedee Corradini and the City Council, with the only two non-LDS members dissenting, signed off on the $8.1 million deal. But the controversy burned for five more years as federal courts were asked to settle the prickly issue of whether the church could govern expression on the plaza and whether the city could retain a public right of way (as outlined in the original deal). “It was meant to be for everybody,” Eyer says. “Where people come and go their constitutional rights go with them.” After a 10th U.S. Circuit Court of Appeals ruling in 2002, First Amendment activities returned to the plaza. But demonstrations by anti-Mormon protesters — including cries of “whore” and “harlot” hurled at newlywed brides — “sustained divisions” that “reached to the point of hatred” between Mormons and non-Mormons, Anderson says. In the end, he agreed to trade the public easement for cash and LDS land to build a west-side community center.
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Local media swallows ‘bathroom bill’ rhetoric
On July 14, the day of a legislative hearing on the transgender rights bill currently on Beacon Hill, WCVB’s NewsCenter 5 ran a story about the bill on its evening newscast. Anchor Liz Brunner introduced the story by saying, “It’s being called the bathroom bill, [and it] is essentially meant to end discrimination based on transgender status.” Behind Brunner was an image of the traditional male and female stick figures found on restroom doors, positioned next to the State House dome and above the tagline, “Bathroom Bill.” Yet the only people calling the trans rights bill, House Bill 1728, a “bathroom bill” are its opponents, and the label is a misnomer by any objective criteria.
H.B. 1728 adds trans-inclusive language to the state’s non-discrimination laws in the areas of employment, public accommodations, credit, housing, and education, as well as to the state’s hate-crimes laws, going far beyond simply allowing transgender people to use bathrooms that match their gender identity or expression. Opponents of the legislation, led by the Massachusetts Family Institute (MFI), claim that the bill will allow male sexual predators to masquerade as women and sneak into women’s restrooms and locker rooms. WCVB’s coverage of the transgender rights bill, as well as the coverage by some other local media outlets, suggests that the work of the bill’s opponents to label the legislation a bathroom bill in public discourse has been at least somewhat successful. See Local media swallows ‘bathroom bill’ rhetoric Bay Windows
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Another front for fairness
AT A HEARING at the State House last week, supporters of a bill to ban discrimination on the basis of gender identity and expression outlined the myriad barriers that confront transgender people – those who are born male but live as females, or vice versa. Unlike those whose religions or sexual orientations expose them to discrimination, transgendered people might not be able to avoid the issue when applying for jobs, apartments, or loans. The truth may become evident from a check on a Social Security number or a search of credit reports.
Transgender advocates aren’t looking for sympathy. The goal of the legislation, introduced by Representative Carl Sciortino, is to give transgender residents of Massachusetts space to live without discrimination or violence. The bill responds sensibly to a real problem, and deserves to pass.
Transgender people don’t make the transition lightly; many, though not all, undergo gender-reassignment surgery. The case of Dana Zircher, profiled recently by the Globe’s Bella English, underscores the difficulty of the process, even when individuals have supportive families and employers. Zircher, a software designer and a parent, has undergone a divorce, surgery, and 350 hours of electrolysis.
Instead of addressing the complexities of actual people’s lives, though, opponents are trying to undermine Sciortino’s legislation by calling it a “Bathroom Bill.’’ The difference between a transgender woman and a man who wants to infiltrate a ladies’ room is perfectly obvious, at least to anyone who is not deliberately obfuscating the issue. The difference would surely be obvious to police officers and judges. Thirteen other states, including Vermont, Maine, and Rhode Island, and dozens of cities, including Boston and Cambridge, already forbid discrimination against transgendered people – and public washrooms are as safe as ever.
See Another front for fairness
Boston Globe
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In UK RC Church rejects gay parents claims
The Roman Catholic Church has reacted angrily to comments endorsing gay parenthood from a charity with strong links to the Church.
Terry Prendergast of Marriage Care, which is partly funded by the Church, said there was no evidence children were harmed by having same-sex parents.
But the organisation representing Catholic bishops said children need parental role models of both genders.
It said Mr Prendergast, a former priest who has since married, was wrong.
Mr Prendergast made his comments to a gathering of gay Roman Catholics in Leicester.
He told the audience at the Quest conference that same-sex families, along with single and cohabiting parents, suffered discrimination and denigration because they fell short of the Vatican’s definition of what constituted a real family.
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 The views expressed by Terry Prendergast about the definition of family and marriage are clearly not a reflection of the Church’s teaching, nor those of the Bishops’ Conference  Catholic Bishops’ Conference
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Instead, he said, they should be held up as role models and an advert for Catholicism.
Mr Prendergast also claimed that there was no evidence to show that children of same-sex parents suffered in any way, and that the elements that made for successful child-rearing were stable relationships.
But the Catholic Bishops Conference of England and Wales has insisted that Mr Prendergast is wrong.
Pastoral response
In a statement, the organisation acknowledged that although it was difficult to define what a family was, the Church still believed that stability for children came from having parents of opposite genders who could provide different role models.
See Church rejects gay parents claims
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Philip Hensher: Forget about a ‘cure’ for homosexuality
It grows increasingly hard to tell the difference between bishops of the Church of England and Paris Hilton. Bishops used to be thoughtful, retiring people, happy to spread the word of God through bring-and-buy sales, the Mothers’ Union and the occasional sermon. Nowadays, some of them have been bitten by the bug of publicity, and they just can’t seem to shut up.
One bishop in particular has been an absolute gift to the media on slow days for news. With no story whatsoever in sight, the office intern is instructed to call up Dr Michael Nazir-Ali, the Bishop of Rochester, and ask him for his opinions on – well, it hardly matters. He will strike a moral pose, and many of us will wonder where on earth he gets it from. He is, frankly, a perfect scream.
In 2000 he said that having children in a marriage was not an “optional extra” and there was “a real lack” if people decided not to have children. Last year, he said Islamic extremism was turning parts of our cities into “no-go areas”, and complained about the amplified call to prayer. He has also denounced multiculturalism as “newfangled and insecurely founded” and in 2007 announced he wouldn’t be going to the Lambeth Conference, in protest at a gay bishop in America.
In a few months he is retiring, 10 years early, to set up a confederation of fundamentalist churches. In the meantime, he has been going round shedding a few more flaky ponderings like psoriasis. The latest, revealed in a newspaper interview, is on the subject of homosexuality, and it amazes me that Dr Nazir-Ali has taken so long to get round to his African colleagues’ favourite subject. Dr Nazir-Ali said: “The Bible’s teaching shows that marriage is between a man and a woman. That is the way to express our sexual nature. We welcome homosexuals, we don’t want to exclude people, but we want them to repent and be changed.”
See Philip Hensher: Forget about a ‘cure’ for homosexuality
Independent
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There’s no pride in bashing gays, Bishop
If you’re reading, Bishop Michael, I really didn’t want to have another pop at you about your trenchant and sometimes bizarre views about what constitutes Christian truth. As to the rest of you reading this, I’m sorry if it looks as if whenever Dr Michael Nazir-Ali, who retires as Bishop of Rochester in September, makes a public statement I launch an attack on him. Believe me, the routine is tiresome for me, too.
But his comments in yesterday’s Sunday Telegraph, which he is expected to repeat today, that homosexuals should “repent and be changed” cannot pass unchallenged. Or rather, they should not go challenged only by homosexual rights campaigners, such as Peter Tatchell, who you would expect to be somewhat antipathetic to the expressed view.
Because Dr Nazir-Ali is wrong in the eyes of a broad swath of kind and tolerant people of differing sexualities, social mores and of the Christian faith, other faiths and no faith at all. Badly, badly wrong.
I say that I didn’t want to have another fight with him because such fights polarise Anglicans, and we’re at our best when we’re talking. I went to a private lunch recently, to which Dr Nazir-Ali was also invited. He didn’t show. The seat next to me went empty. I do hope he didn’t bottle it; it’s important that religious leaders don’t just inhabit comfort zones with friends who share their views.
Dr Nazir-Ali’s friends are the Fellowship of Confessing Anglicans (Foca), who this week will try to get the Anglican schism over homosexuality going again, while denying that they are doing any such thing. Had he turned up to our lunch, I would have asked him why he and Foca are so convinced that they know the mind of God better than those who disagree with them and that their interpretation of scripture is with absolute certainty the one and only true one.
When I write about the Church and homosexuality, inevitably I receive messages that read simply “Romans 1:26-27″ or “1 Corinthians 6:9″, as if that settles something. We can argue scripture until we’re at the pearly gates. But the essential difference between Dr Nazir-Ali and me is this: I accept, disappointing as I would find it in my fiery furnace, that he might be right. By contrast, he and his friends cannot accept that I might be right, claim that I can’t be a proper Christian, and some of them go so far as to suggest that I’ll burn in hell for all eternity.
And there’s the real problem: it’s an issue of intolerance. Anglicanism has long been characterised by a broad tolerance. But my tolerance of Dr Nazir-Ali and his friends, that they are Anglicans with whom I happen vehemently to disagree, doesn’t seem to be reciprocated.
See There’s no pride in bashing gays, Bishop Telegraph.co.uk
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Gay-lesbian course at UoP sets an example for other universities
When the University of Pune (UoP) started a Lesbian Gay Bisexual Transgender (LGBT) course in 2007, it was the second university in the country, after University of Hyderabad, to do so. Then, the UoP initially even had to put a disclaimer saying that one doesn’t have to be gay to take the course.
Today even as two of its students take up LGBT topics for MPhil research, other universities are mulling over the possibility of getting the Department of English, that conducts the LGBT course, to hold a workshop on it for their teachers, reflecting a significant change in the academia’s mindset.
“The other day, two professors from outside Pune — PC Kar from the University of Baroda and CJ Jahagirdhar from Kolhapur University — visited us and were of the opinion that we should conduct workshop for college-level lecturers on the LGBT course on their campuses. It shows a welcome change in the attitude of the academic fraternity,” said Raj Rao, professor of English at the UoP, whose persistence resulted in the LGBT course seeing the light of the day.
See Gay-lesbian course at UoP sets an example for other universities Indian Express
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