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.
House subcommittee approves benefits for same-sex partners
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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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Maine campaign heats up
With the prospect of a November referendum on same-sex marriage in Maine all but certain, pro-equality advocates are gearing up for a bruising battle to preserve the state’s marriage equality bill, signed by Gov. John Baldacci in May. Since January, Maine Freedom to Marry has been ramping up a vast field campaign to identify pro-equality voters. Without a presidential or gubernatorial race to bring voters out, Maine Freedom to Marry campaign manager Jesse Connolly said grassroots fieldwork is essential to finding voters who support marriage equality and to turning them out at the polls on Election Day.
“This campaign is really about having one-on-one conversations with Maine voters. … We’re raising money, we’re building a campaign, but we’re really excited about this great work the field effort has been doing,” said Connolly.
Yet campaign finance reports suggest that pro-equality advocates may face an uphill battle. Thus far, anti-gay activists have outpaced pro-equality advocates in fundraising. Much of that money has come from the national religious right organizations that backed the successful campaign to pass California’s Proposition 8 last year. See Maine campaign heats up
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San Jose’s Billy DeFrank Center embarks on ambitious fundraising campaign
For 28 years, the Billy DeFrank LGBT Community Center has been the go-to place for Silicon Valley’s diverse gay community. But on Tuesday, interim executive director Paul Wysocki sent out a desperate plea: the DeFrank Center will close its doors unless it raises $50,000 by Sept. 1. “Our government funding has ended, and in today’s economy, we can’t count on corporate support,” read a weekly newsletter that is e-mailed to supporters. “Our current income from memberships and events no longer meets even the most basic level of Center operations.” The DeFrank Center has three main programs: support services for youth, another for seniors, and an HIV/AIDS testing program. But funding for the HIV testing from Santa Clara County and for the senior program from the city of San Jose have dried up as both the county and the city struggle with their own budget deficits. The Center has cut expenses and now has an annual budget of $310,000, down from $800,000 a few years ago. Wysocki became interim executive director four months ago after former executive director Aejaie Sellers and former board President PJ Matarese were ousted amid internal power struggles over the center’s long-term vision and escalating financial problems. “I have a lot of empathy for Barack Obama,” said Wysocki. “You inherit a situation where a lot of things were done poorly.”
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Socially Significant: ‘Bruno’ offers mixed messages on gay community
Sasha Baron Cohen’s first large scale movie, “Borat,” was a tremendous financial and critical success.
It both entertained audiences and also functioned as a tongue-in-cheek examination of xenophobia in the United States.
Those looking for that same combination in Baron Cohen’s new film, “Bruno,” are going to have to look a little harder. “Bruno” does challenge American society, but its attempts to lampoon homophobia while generating laughs confuses more than it enlightens.
If you’ve heard anything about the movie during the last few weeks, you’ve probably heard some rather polarized opinions on it.
Most people seem unable to find a middle ground with the film and can’t decide if the movie hurts the national view on the gay community and culture, empowers it or does nothing except make people laugh at the movies excessive use of penises.
Baron Cohen plays Bruno, a German fashionista trying to get work in the U.S. after his fashion commentary show is canceled in his home country. Bruno’s campy actions throughout the film attract the derision of nearly everyone he meets until he figures out the problem — he’s gay. The remainder of the film involves more wacky escapades as Bruno tries to straighten-out and eventually embrace his homosexuality. See Socially Significant: ‘Bruno’ offers mixed messages on gay community
LSU The Reveill
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Silent partner’ examines what happens when people ‘don’t tell’
The last thing he expected was to have to put a part of himself back into the closet. But if the military were to find out about his love for a sailor, a man with years of honorable service would face a dishonorable discharge.
One of the rarely discussed effects of the military’s “don’t ask, don’t tell” rule is the burden it places on the civilian partners of gay and lesbian service members. When their loved ones go to war, they do not have access to any of the counseling, financial assistance or support networks offered to heterosexual spouses. And if their loved ones die, no one will come knocking at their doors to notify them.
On Thursday, gay veterans and their partners shared their experiences at the local premiere of “Silent Partners,” a 30-minute documentary offering a glimpse into the lives of three gay “military spouses” waiting for their partners to come home.
“This film, I believe, is telling a story we haven’t heard before,” said Lt. Daniel Choi, who introduced the film.
See Silent partner’ examines what happens when people ‘don’t tell’
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Condemnation for bishop who called for gay people to ‘repent’ Independent
The Bishop of Rochester has been accused of pandering to hate and homophobia after calling on homosexuals to repent. Michael Nazir-Ali provoked outrage among gay groups when he urged Church leaders to stick to traditional values instead of being swayed by “culture and trends”.
While calling for the “traditional teaching” of the Bible to be upheld, the Bishop said of homosexuals: “We want them to repent and be changed.”
His controversial remarks were published just hours after more than half a million people, including the Prime Minister’s wife, Sarah, took part in the Gay Pride parade in London.
Sharon Ferguson, of the Lesbian and Gay Christian Movement, condemned Dr Nazir-Ali for making comments that she said would encourage hatred.
“It feeds to the more fundamental individuals who are looking to have their opinions ratified and speak hatefully and behave hatefully,” she said.
“His comments are likely to cause more of a schism within the Church of England. He’s saying their [gays and lesbians] sexuality is a sin. It’s not. It’s a gift from God. God made us all.”
She added: “He is telling people ‘You have to repent’ for something they have no control over. It’s like asking someone to repent because they have blue eyes.”
Peter Tatchell, the gay rights campaigner, said he was “shocked” at the level of anti-gay prejudice voiced by the bishop. “Homophobia is a social and moral evil, just like racism. Bigotry, even in the guise of religion, has no place in a compassionate, caring society,” he said. “I call on the bishop to repent his homophobia. His prejudice goes against Christ’s gospel of love and compassion.”
Labour MEP Michael Cashman accused the Bishop of Rochester of being “selective” about which parts of the Bible he upheld. “When he calls for the closure of all the banks, finance houses and credit card companies because of what it says in the Bible about usury, then I’ll take him seriously,” he said. “Until then, unless he can say anything good, he should shut up.”
In his comments, made to a Sunday newspaper, the bishop said homosexuals should be welcomed into the Church but that a person’s sexual nature could only be correctly expressed in a heterosexual union within marriage. His remarks reopened the row over homosexuality that has for years threatened to tear the Anglican Church apart.
He made them on the eve of today’s official launch of the Fellowship of Confessing Anglicans at Westminster Central Hall in London where he is expected to speak in support of the organisation. The UK branch of the Fellowship is regarded by many liberals within the Anglican movement as an attempt to create a church within a church with the aim of heading off moves to ease rules on homosexuality. Dr Nazir-Ali is to step down in the autumn and he is expected to play an important part in the Fellowship’s activities.
The Very Rev Colin Slee, the Dean of Southwark and a prominent liberal, was so alarmed by the the impending departure of Dr Nazir-Ali from the See of Rochester that he described it as “clearly a move towards a sectarian alternative church intentionally designed to create turbulence in the Anglican Communion”.
Canon Chris Sugden, of the Fellowship, said a message from the Queen will be read out during the ceremony but a Buckingham Palace spokeswoman called it nothing more than a “standard response” to the many requests made to the monarch each year. “It isn’t endorsing anyone’s point of view,” she said.
Zeal of the convert: The Bishop of Rochester
*Michael Nazir-Ali has been one of the most vocal and controversial of bishops of the past decade and has rarely been afraid to speak out.
He was a leading contender to become Archbishop of Canterbury when George Carey stood down but has found himself at odds with Rowan Williams, the incumbent.
The issue of homosexuality has been one of the biggest causes of friction between Dr Nazir-Ali, the Bishop of Rochester, and the liberal wing of the Anglican Church.
In 2008 the rift was so marked that he boycotted the Lambeth Conference, a meeting of Anglican Church leaders held once a decade, because of the row over homosexuality. He is part of an evangelical wing urging the Church to stick to a traditional interpretation of the scriptures regarded by liberals, especially on the issues of homosexuality and women priests, as backward.
This year he announced he would step down as Bishop of Rochester in September to allow him time to concentrate on representing the Church in parts of the world where Anglicans are a minority religion or oppressed.
Born in Pakistan to Catholic parents, he converted at the age of 20 and holds dual British and Pakistani nationality. Appointed the 106th Bishop of Rochester in 1994, he was the first non-white diocesan bishop in the Church of England. Since then he has been a frequent critic of the rise of Islam in Britain.
See
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DOJ Will Not Appeal Veteran’s VictoryIn Transgender Discrimination Case
Signals Commitment By Obama Administration To Protect Transgender Workers From Discrimination
WASHINGTON, DC – The U.S. Department of Justice decided not to appeal a federal court ruling awarding transgender veteran Diane Schroer the maximum compensation for the discrimination she suffered after being refused a job with the Library of Congress. The deadline for seeking an appeal was June 30. The American Civil Liberties Union has represented Schroer in her case.
The Obama administration’s decision whether to appeal the final ruling in the case has been closely watched in part because the Bush administration defended the case so vigorously, arguing that transgender Americans are not protected by any existing federal laws. The decision not to appeal the verdict is consistent with the Obama administration’s campaign promises to protect transgender workers against discrimination and his administration’s recent order taking steps to bar gender identity discrimination in federal employment.
“I am grateful that the court took the time to examine the case in detail and come to a fair and unbiased decision. In that same light, I am gratified that the current administration saw this for what it was, a case of sex discrimination focused against transgender people, and recognized that it must end in this country,” said Schroer, an Army Special Forces veteran with 25 years service. “The important signal that the administration’s decision sends to all LGBT individuals gives me renewed hope and restores some of my shaken faith in what our country stands for.”
On April 29, 2009, a federal court awarded Schroer maximum damages of $491,190 for back pay, other financial losses and emotional pain and suffering after finding the Library illegally discriminated against Schroer because of her sex. At trial, Schroer testified that she had applied for a position with the Library of Congress as the senior terrorism research analyst and was offered the job. Prior to starting work, she took her future boss to lunch to explain that she was in the process of transitioning and wished to start work presenting as female. The following day, Schroer received a call from her future boss rescinding the offer, telling her that she wasn’t a “good fit” for the Library of Congress.
“We are pleased and relieved that the Obama administration has decided to bring an end not only to years of hard-fought litigation but also to a painful chapter of Ms. Schroer’s extraordinary life,” said Sharon McGowan, a staff attorney with the ACLU LGBT Project. “The administration’s decision not to challenge this important civil rights ruling is a welcome sign that it intends to live up to its commitment to help end transgender discrimination in the workplace.”
The ACLU filed the lawsuit against the Library of Congress on June 2, 2005, charging that the library unlawfully refused to hire Schroer in violation of Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in the workplace. In an earlier ruling in this case, the court issued a groundbreaking opinion that discriminating against someone who transitions from living as one gender to another is sex discrimination under federal law. In reaching this decision, the court compared the discrimination faced by Schroer to religious-based discrimination, saying, “Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testified that he harbors no bias toward either Christians or Jews but only ‘converts.’ That would be a clear case of discrimination ‘because of religion.’ No court would take seriously the notion that ‘converts’ are not covered by the statute.” The court also ruled that the library was guilty of sex stereotyping against Schroer because of its view that she failed to live up to traditional notions of what is male or female.
“This case put employers on notice that discrimination against transgender individuals is like any other form of discrimination – counterproductive and against our principles as a nation,” added Schroer. “But this case alone won’t end the rampant discrimination that transgender people face throughout the country. That’s why we need Congress to pass the Employment Non-Discrimination Act that was introduced last week.”
In addition to McGowan, the legal team consisted of Ken Choe, Senior Staff Attorney for the ACLU LGBT Project, James Esseks, Litigation Director for the ACLU LGBT Project and Arthur Spitzer, Legal Director of the ACLU of the Nation’s Capital.
A copy of the decision, the complaint, a video, a bio and photographs of Diane Schroer are available at: http://www.aclu.org/lgbt/transgender/24969res20050602.html
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Gay Dems complain DNC cut off funding, drop support for Biden event
Theboard of directors of the National Stonewall Democrats are dropping their support for a June 25 DNC fundraiser with Vice President Joe Biden over, they wrote in an email obtained by POLITICO, a combination of policy slights and the claim that they’ve been cut off from traditional party funding.
In the email to Tom Petrillo, who runs the party’s substantial gay fundraising operation, the board members write:
[W]e are incredibly disappointed that the DNC has made a decision to withhold any financial support to National Stonewall Democrats this year but is in turn asking us to help raise money for the DNC in a difficult financial environment. The DNC has historically supported National Stonewall through sponsorship of the annual Capitol Champions event. This year, we did not receive any support. The DNC has traditionally provided materials for the many Pride parades and festivals around the country to help educate the LGBT community about why the Democratic Party is the Party for full LGBT equality. This year we were informed that we would not be receiving any materials or support for producing materials for the various nationwide Pride activities. These decisions were very disappointing.
We’d be remiss to also not mention that the recent legal brief of the Obama Administration defending DOMA is incredibly hurtful. The members of the Board and our membership put our hopes, our dollars and our time into ensuring the election of Barack Obama because we believed that he supported us. To now have his Administration refer to our relationships in the same terms used by our long time enemies such as Pat Robertson, Jerry Falwell and James Dobson hurts on so many levels. To have our committed and loving relationships referred to as the moral equivalent of incest and pedophilia is not something that any of us ever expected from this Administration considering how hard we worked to be seen and respected. For that reason alone, advocating for attendance at a fundraiser to support the Administration and the DNC, while they have not condemned this hurtful language, is not something our membership will receive positively.
The group says it’s not “boycotting” the June 25 fundraiser with Joe Biden; it just won’t encourage its members to attend.
Gay money is, historically, of outsized importance to the Democratic Party. Howard Dean, in particular, launched his presidential campaign in part on enthusiasm from gay donors about his support for civil unions, and maintained those relationships as chairman. For update see Gay Dems complain DNC cut off funding, drop support for Biden event
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