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.

Catholic lesbian parents speak out about preschool

We’ve written about the two small kids who were kicked out of a Catholic school [1]by the Archbishop of Denver [2]because their parents are lesbians.

Now the parents are speaking out in their own words.

Here’s a statement from the parents released anonymously through Boulder Pride; it’s long, but worth reading.

The following is a message from the parents of two children being denied re-enrollment at Sacred Heart of Jesus School

We are normal people. We have two children, a nice house, and a dog. We both hold professional jobs in the community.
You would likely pass us on the street and not take much notice.

We work hard, and enjoy spending time with our family, traveling, and being outdoors. What makes us different is that we are a lesbian couple. We are not activists by nature. You have never seen us at protests or marching in parades. Up until this point, we have taken the typical passive approach of voting for candidates that represent our viewpoints and directing our charitable donations to
organizations whose missions we support. We live in a liberal community, where we have always felt safe, comfortable, and accepted.

Certainly over the years there have been times when our sexuality has been an issue, but they have been relatively minor. We had to hire a lawyer to ensure both of our names were on our children’s birth certificates, to protect our rights to inherit each others assets, and establish medical durable power of attorney.

Luckily, we had the financial means to pay the thousands of dollars to do all of this. In the years that we have been in Colorado, laws have since been changed to protect some of these basic rights. We file our taxes as single. We filled out our census as ‘unmarried partners living together’ since we are not able to legally marry. Upon returning from vacation, US Customs would not process us together because we ‘did not qualify as a family’.

These are things that gay and lesbian people deal with every day.

Recently, we found ourselves in the middle of a political firestorm. We went to enroll our oldest child in kindergarten at Sacred Heart of Jesus School, and were told that our children would not be welcome to continue their education there long term because of our sexual orientation.

This came as a shock to us because our children had been attending preschool at Sacred Heart for three years. We had been open about our family situation from the start, and had always felt welcomed by parents and teachers. The past weeks have been very difficult for our family. We were initially very hurt and angry.

We met with school and church administrators to discuss the situation. We were told that families and students need to uphold church doctrine in order for children to be admitted. We were also told that our children would feel uncomfortable when taught about the “family unit”, and teachers might feel too intimidated by their presence to teach church beliefs.

Our answer to this is that there are many families that do not live their lives according to church doctrine. There are divorced parents, children of parents born out of wedlock, non-Catholics, and non-practicing Catholics. Their eligibility has not been questioned. There seems to be a subjective rating system of which sins are more unacceptable.

Regarding the school’s teaching about the ‘family unit’, we are unconcerned. Our children know that their family is different than most. They are well aware that many families have a mom and a dad, and we discuss different family models openly. We have a good understanding of the church’s position on gay and lesbian people. We have never sought approval from the church of our relationship and we would never ask that the school modify its teachings to accommodate our family. We are not threatened by our children hearing different points of view on any issues.

Next page: It is wrong to punish a child for who it’s parents are

[1] http://www.365gay.com/news/catholic-preschool-wont-let-student-return-because-of-lesbian-parents/
[2] http://www.365gay.com/news/archbishop-defends-decision-on-lesbians-children/

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