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.
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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Too Gay in Amsterdam?
It’s no secret that Amsterdam is gay-friendly, but in case that slipped under anyone’s radar, Dutch tourism officials have launched a micro Web site this month proclaiming that “Everyone’s Gay in Amsterdam.”
The Web site, which is geared for American travelers, offers a “gay list” that features places like Pric, described as a “relaxed and funky gay-friendly bar” that “serves up unusual cocktails concocted by its highly-trained staff of bartenders.”
But a closer look reveals that not everyone in Amsterdam is, in fact, gay. A photograph of a seemingly happy straight couple biking along a canal? The Van Gogh Museum? A “gay locator” that doesn’t turns the entire city into an orange dot?
Turns out, “gay” doesn’t just reefer to sexual orientation, but “the attitude of the people in this grand European city,” according to the VisualMerc, a New York-based interactive agency that created the micro-site.
New York Times
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Diocese of Niagara to offer same-sex blessings
As of Sept. 1, the diocese of Niagara will allow its priests to bless same-gender couples who have been civilly married.
Niagara becomes the second diocese in the Anglican Church of Canada, after the Vancouver-based New Westminster, to offer a sacrament for same-sex blessings. (The diocese of New Westminster, which allowed same-sex blessings in 2002, currently limits the rite to eight parishes.) The issue of same-sex blessings continues to deeply divide Anglicans in Canada as well as worldwide.
“The Niagara Rite is intended for the voluntary use of priests who wish to offer a sacrament of blessing regardless of the gender of the civilly married persons…” the diocese of Niagara said on its Web site, www.niagara.anglican.ca
The rite may also be used for the blessing or renewal of vows for couples “celebrating a significant moment in their married life together,” said an introduction to the Niagara Rite.
The approval of the rite came five years after the diocesan synod of Niagara passed a motion allowing civilly-married gay couples, “where at least one party is baptized,” to receive a church blessing. The diocesan bishop at that time, Ralph Spence, had refused to implement the motion. In January 2008, a similar motion was approved by Niagara’s diocesan synod, and this time, Bishop Spence gave his approval, but said he reserved the right to determine when the same-sex blessings would move forward.
Last fall, Bishop Spence’s successor, Michael Bird, informed a meeting of the Canadian house of bishops that he intended to develop the rite, saying, “I believe we are among those who have been called by God to speak with a prophetic voice on this subject.”
Under a list of protocols outlined by Bishop Bird, a cleric who wishes to offer the Niagara Rite must contact the bishop’s office “so that a conversation can take place between the bishop and the cleric involved.” The cleric is expected to provide details about the couple the cleric intends to bless “and should be prepared to have a conversation about the response of the parish to the blessings,” the list added. “A date for such a blessing should not be confirmed with the couple until after this conversation with the bishop has taken place.”
A parish is not required to get the approval of its vestry before it can offer such blessings.
Two other dioceses – Montreal and Ottawa – have also informed the house of bishops about their intention to move ahead with same-sex blessings. At that meeting, the house of bishops issued a statement saying that a “large majority” of its members could affirm “a continued commitment to the greatest extent possible” to a moratorium on the blessing of same-sex unions. But it acknowledged that the moratorium, which had been sought by the Archbishop of Canterbury and the primates of the Anglican Communion, would be difficult for some dioceses “that in confidence have made decisions on these matters.”
The issue of whether dioceses can offer same-sex blessings is likely to be revisited at the 2010 meeting of General Synod, the governing body of the Anglican Church of Canada. In 2007, General Synod had agreed that blessing rites for gay couples are “not in conflict” with core church doctrine, but refused to affirm the authority of dioceses to offer them. General Synod delegates had also voted to study revising the marriage canon (church law) to allow priests to marry all legally qualified persons. Marriage for gay people has been legal in Canada since 2005.
Last spring, Council of General Synod (CoGS), the church’s governing body in between General Synod meetings, decided not to ask General Synod 2010 to amend the marriage canon to allow for the marriage of same-sex couples. The decision was made after the faith, worship and ministry committee, which was asked by CoGS to prepare “a theological rationale to allow for the marriage of all legally qualified persons,” said that it found the request problematic. Janet Marshall, committee chair, told CoGS that some members felt uncomfortable about being asked to create a rationale for only one side of the argument.
See Diocese of Niagara to offer same-sex blessings
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Gay marriage will be issue in Iowa House special election Daily Kos
Iowans in House district 90 will elect a new state representative in a special election on September 1, and the Republican candidate appears to be planning to make same-sex marriage a major campaign issue.
The seat opened up when State Representative John Whitaker, a Democrat, accepted a position with the U.S. Department of Agriculture. Republicans didn’t even run a candidate against Whitaker in 2008, but Iowa House district 90 has been competitive in the recent past. The southeastern Iowa district contains all of Van Buren County and parts of Wapello and Jefferson counties, including the Fairfield area (home to Maharishi University and the so-called “Silicorn Valley”).
The Democratic candidate for the special election is Curt Hanson, a retired driver’s education teacher who has won various teaching awards. Hanson plans to campaign on bread-and-butter issues: jobs, health care, education, and balancing the budget.
See Gay marriage will be issue in Iowa House special election
Daily Kos
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Outgames international gay sport and culture event opens in Copenhagen
There will be triathlon and handball – but also bridge and line dancing. Copenhagen is preparing for thousands of gay people from dozens of nations to descend this weekend for the Outgames, a nine-day sporting and cultural olympics for the lesbian, gay, bisexual and transgender community.
When the 5,500 participants are introduced on a catwalk in Copenhagen’s central square today, it will kickstart nine days of sport, arts and political debates with almost 100 nations represented in more than 30 events, traditional and improvised.
But the event is about much more than podium places. The Outgames has launched itself under the banner of sport, culture and human rights. Participants from a host of cities, including Tel Aviv and Mexico City, will take over public spaces throughout Copenhagen to showcase artists and performers.
See Outgames international gay sport and culture event opens in Copenhagen
guardian.co.uk -
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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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NYC Prep: PC Bares It All as Gay Rumors Spread
Among all the cast members of NYC Prep , I’ve always been puzzled about PC. Aside from being the most notorious and flashy, he seems to be struggling with something —something that I’ve been trying to hold back until various other websites have reported it as well. Word on the street is that PC is gay!
I guess it all started in the first episode, where viewers were introduced to PC as someone obsessed with fashion and shopping. On top of that, viewers also learned that he has several effeminate mannerisms. While these things make PC potentially gay, that might not be enough to prove that he is. However, as NYC Prep heads further into the season, it seems that more and more viewers are getting convinced. See NYC Prep: PC Bares It All as Gay Rumors Spread
BuddyTV
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Military Gay Discharge Moratorium Bill A Non-Starter
New York Senator Kirsten Gillibrand has decided not to pursue a senate amendment that would pause military discharges based on sexual orientation, gay weekly the Washington Blade reported. Gillibrand, the freshman senator appointed by Governor David Paterson after President Obama tapped Hillary Clinton to head the State Department, signaled last week she would introduce the reform as an amendment to a Defense Department reauthorization bill. The amendment would place an 18-month moratorium on the military gay ban, also known as “don’t ask, don’t tell,” the law that prescribes discharge for gay and lesbian service members who do not remain celibate or closeted.
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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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