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.
Gay-friendly judge wins Ore. Supreme Court race
(Portland, Ore.) An appeals court judge who wrote a historic opinion extending gay and lesbian rights, has won a seat on the Oregon State Supreme Court.
Jack Landau, an Oregon Court of Appeals judge, on Tuesday defeated Allan J. Arlow, an administrative law judge with the Oregon Public Utilities Commission.
Landau had 71 percent of the votes, with 56 percent of the expected vote counted.
As an appeals court judge, Landau wrote the opinion in Tanner v. OHSU, which ruled that employers cannot discriminate against gay and lesbian couples when providing health care benefits.
The Supreme Court seat opened with the retirement of Justice W. Michael Gillette.
Mexico City begins handing out marriage licenses
(MEXICO CITY) Throngs of Mexico City gay and lesbian couples registered for marriage licenses Thursday, the day Latin America’s first gay-marriage law took effect.
The first gay weddings will take place within a week to 10 days, after the paperwork is processed.
Mexico City’s legislature approved the first law explicitly giving gay …
Blacks play key role in D.C. marriage equality
(WASHINGTON) Gay and lesbian couples will soon be able to marry in Washington, but the debate over same-sex marriage has sounded different here, with references to interracial marriage and Martin Luther King Jr.
During the past year, both sides have courted the support of Washington’s black community, a majority of the …
A conservative’s case for same-sex marriage – eTaiwan News
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A conservative's case for same-sex marriage
eTaiwan News … of government excess are only too happy to see government in this instance intervene in the personal lives of millions of gay and lesbian couples. … |
Microsoft donates $100 k for gay partners effort
(Olympia, Wash.) Microsoft Corp. has donated $100,000 to the campaign supporting more partnership rights for Washington state gay couples.
That’s the largest single donation in favor of Referendum 71, which asks voters to approve or reject a new law that expands domestic partnerships for gay and lesbian couples. Microsoft is based …
Uruguay clears way for gay adoptions
(Montevideo, Uruguay) Uruguay is clearing the way for gay couples to adopt children.
The Senate’s final approval Wednesday makes Uruguay the first country in Latin America to allow gay and lesbian couples the opportunity to adopt.
The executive branch now will decide when the law takes effect. The change is supported by …
Anti-domestic partner referendum makes ballot
(Olympia, Wash.) A referendum on an expansion of Washington’s domestic partnership law for gay couples has qualified for the November ballot, election officials said Monday.
The “everything but marriage” measure broadens recognition of domestic partnerships by granting gay and lesbian couples all the remaining state-provided benefits presently extended only to married …
Gay marriage now key issue for Corzine
Gov. Corzine has made “marriage equality” for gays and lesbians a prominent piece of his reelection campaign, taking another step in his conversion on the issue and encouraging gay-rights advocates who hope to see same-sex marriage approved in New Jersey this year.
In public speeches and private appearances, Corzine, who as recently as 2006 said he believed marriage should be between a man and a woman, has touted his support of same-sex marriage.
In raising the issue, he has tried to draw a bright-line divide with his Republican opponent, Christopher J. Christie, who has said he would veto a bill allowing gay and lesbian couples to wed.
“We believe that government should allow people the freedom to marry whomever they love,” Corzine said in his general-election kickoff speech June 2.
At a gay-pride parade days later in Asbury Park, N.J., Corzine referred to his campaign and told cheering revelers: “Marriage equality is on the ballot. Are you going to help us make it come to pass in New Jersey?”
His campaign posted a video clip online showing the event.
See Gay marriage now key issue for Corzine
Philadelphia Inquirer -
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Lawyers: Gay couples’ rights justify injunction San Jose Mercury New
SAN FRANCISCO—Two high-profile lawyers are arguing that any bureaucratic inconvenience caused by suspending California’s same-sex marriage ban is outweighed by the ongoing discrimination being suffered by gay and lesbian couples.
Theodore Olson and David Boies, who represented opposing sides in the 2000 presidential election challenge, Bush v. Gore, filed papers Thursday buttressing their argument that Proposition 8 should be lifted while a federal lawsuit challenging the voter-approved measure proceeds in court.
See Lawyers: Gay couples’ rights justify injunction
San Jose Mercury New
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