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.
Culhane: Why do gays and lesbians care about marriage?
How did marriage, of all things, become the cause célèbre of the LGBT rights movement? Let’s face it: There are good historical reasons for us to eschew and pooh-pooh this institution, which doesn’t exactly have a glorious track record.
“Since When is Marriage a Path to Liberation?” was the provocative question that lesbian activist Paula Ettelbrick raised in an influential article more than 20 years ago. Her article slammed what was then the emerging focus on same-sex marriage as a misguided effort that would secure gay and lesbian “equality” within the stifling confines of an inherently unequal and patriarchal institution.
Yet there we were, Ettelbrick and I, together in 2007 on a panel discussing LGBT legal issues, and she was arguing for marriage equality. What happened?
I had the chance to ask her about this dramatic about-face during a cab ride to the train station after the event. Had she been possessed by the spirit of Andrew Sullivan? Well, kind of. All of the same-sex couples making their clear and passionate case to have the state recognize their unions had convinced her to value reality over ideology, and (here I’m guessing) perhaps to see that same-sex marriages have the potential to revitalize the institution, and to help transform it into a more egalitarian partnership.
But why is it so important for the state to recognize our unions in the first place? Let’s start by considering the alternatives. The first of these is a religious union. For many lesbian and gay couples, getting married in their church, synagogue, or mosque is deeply meaningful. But it’s not enough. Some (straight and gay) couples don’t derive spiritual nourishment from such ceremonies. And even for those who do, “the power vested in” clergy to legally solemnize marriages can’t solemnize theirs.
So what about a “secular substitute” for marriage, such as the civil union, that confers all the benefits of marriage but not the title?
Do I really need to ask this question?
First, the civil union doesn’t confer all of the benefits of marriage. It’s not recognized at the federal level, so that even if the obnoxious Defense of Marriage Act were repealed, couples in a civil union wouldn’t have any of the federal benefits of marriage, which are the most significant ones.
But it’s not just about the benefits, either. In some paradoxical way, the civil union is worse, because it’s pure discrimination. The state has given up all of the arguments against equality in conferring the civil union status, but still insists on a separate label. In In re Marriage Cases, The California Supreme Court hit the bull’s-eye in rejecting this kind of “virtual equivalence:
“[A]ssigning a different designation for the family relationship of same-sex couples…poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect.”
By this point, some of you are likely muttering: “OK, marriage, fine. But what about discrimination, social justice, and the real economic barriers to equality? Aren’t these the things that should be concerning us instead of this mostly abstract equality debate?”
Well, you probably didn’t mutter exactly that, but the point is fair anyway. Why all this emphasis on marriage?
First, many of us are, at heart, assimilationists who want to fit in with the most traditional structures. Think marriage and – the prom! Those gay and lesbian teens [1]who demanded to attend their proms are radical and traditional at the same time, as are those seeking marriage equality. It’s that scary incursion of the outlandish into “safe” structures that explains, at least in part, the sometimes vicious resistance we find in everyone from Maggie Gallagher to those parents who engineered the fake prom [2] that Constance McMillen was sent to.
The other part of this fight for equality has to do with the government’s role in the discrimination. Remember that many of the most important achievements of both the civil rights and women’s movements were ending government-sponsored discrimination in voting, unfair marriage laws, and segregated public facilities and schools. If government is willing to declare that members of a group are second-class citizens, then private and social discrimination is fair game.
Since laws prohibiting same-sex intimacy have now been declared unconstitutional, the most important state-sponsored formal discriminations we face are DADT and the ban on our marriages. So, while marriage may never be a path to liberation – much less to robust social and economic fairness – it’s a vital part of our rights as citizens. That’s why it matters.
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, philosophy and lots of personal stuff) at: http://wordinedgewise.org. Here’s a fuller bio [3]. He will be blogging the week-long Equality Forum [4] from Philadelphia later this month.
[1] http://www.365gay.com/blog/ruby-sachs-prom-politics/
[2] http://advocate.com/News/Daily_News/2010/04/05/ACLU_Investigating_Fake_Prom/
[3] http://law.widener.edu/Academics/Faculty/ProfilesDe/CulhaneJohnG.aspx
[4] http://equalityforum.com
American-Dutch gay couples wed in Amsterdam
(Amsterdam) The mayor of Amsterdam presided over the weddings of five American-Dutch gay, lesbian and transgender couples on a boat during the city’s Gay Pride festival Saturday, challenging the United States to legalize gay marriage, as well.
Mayor Job Cohen also performed the first weddings in the Netherlands after the country …
Swedish lesbians suck sperm banks dry
Sweden’s fertility clinics are racking up a serious backlog of people waiting for artificial insemination, due in part to a “spike” in demand from lesbian couples for vital supplies of man juice.
So bad have things got that expectant customers at Sahlgrenska University Hospital in Gothenburg are now forced to wait 18 months for treatment.
See Swedish lesbians suck sperm banks dry
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DC Law Helps Lesbian Couples Become Moms
A new D.C. law is making it a lot easier for a newborn to have two mommies from birth. According to the law, which went into effect on July 18, the District of Columbia will confer “the status of legal parent on both lesbian mothers who plan a child using donor insemination,” Nancy Polikoff reports.
In the past, the birth mother’s partner would have to go through an adoption process to become a legal parent of the child; now, the second mommy just needs to fill out some paperwork to demonstrate her “written consent” of parenthood. Polikoff notes that the new law is “marital status-neutral and gender-neutral,” so it will change parenthood policy in a couple of other situations as well:
See DC Law Helps Lesbian Couples Become Moms Washington City Paper
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On same-sex marriage/civil unions, the air is leaking out of the tire
ast month Texas Lyceum, a non-partisan, business-oriented group, released one of its periodic polls on current issues, and the results for the most part were what one would expect in a conservative state. By margins of about 2-to-1, Texas opposed any further bailouts for automakers or banks. An even bigger margin – including a majority of whites, blacks and Hispanics – supported the concept of a voter ID requirement.
But on one issue, the poll did raise some eyebrows. According to the survey, a majority of Texans would permit some form of same-sex union to be recognized: 25 percent favor same-sex marriage and 32 percent would allow civil unions, while 36 percent oppose either arrangement. Although Democrats and independents were more liberal on this issue than Republicans, a thin Republican majority – 14 percent for same-sex marriage, 37 percent for civil unions – now favor one arrangement or the other.
That indicates that Texans are more conservative than the rest of the country on this issue, but not dramatically so. A CBS News/New York Times poll conducted at about the same time showed that 33 percent of Americans favor same-sex marriage, 30 percent would permit civil unions and 32 percent oppose any legal recognition of same-sex or lesbian couples.
This national poll also showed opinions on the issue are shifting back and forth: In a CBS News/New York Times poll conducted in April, support for same-sex marriage was at 42 percent. That decrease in support could be a result of the rising visibility of the issue: In June, New Hampshire Gov. John Lynch signed a bill which made his state the sixth in the country to allow same-sex marriage.
The fact that attitudes in Texas aren’t greatly out of line with the rest of the country doesn’t portend any big changes in the law in this region of the country, any time soon. If same-sex marriage/civil unions had been polled last month in Tennessee or Alabama, opposition to either one would probably have been significantly higher. But it may be an indication that as a political issue which can easily get traction, the air is slowly leaking out of the tire.
Most of the states, and all the Southern states, have passed some form of Defense of Marriage Act, and all the Southern states except North Carolina have passed constitutional bans on same-sex marriage. This makes it less, not more likely that conservative candidates in these states will get much mileage out of the issue than they have in recent years. It’s much more likely that opposition to same-sex unions will galvanize votes in states like New Jersey or Pennsylvania, where changes in current laws are a greater possibility.
None of this is to say conservative candidates won’t be able to raise money and garner endorsements on the issue well into the next decade. But it’s noteworthy that the strongest opposition to gay marriage in nearly every poll comes from African-Americans, who aren’t likely to swing behind candidates who are conservative on other issues.
See On same-sex marriage/civil unions, the air is leaking out of the tire
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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
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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
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In Israel, Bill proposes allowing lesbian couples to split maternity leave
A new bill proposing allowing lesbian partners to split the maternity leave between them has been submitted to the Knesset’s approval.
The bill’s initiator, Knesset Member Dov Khenin (Hadash) explained that “women living together in a joint household should also be able to enjoy the benefit of splitting the maternity leave between them.” See Bill proposes allowing lesbian couples to split maternity leave Ynetnews
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Senate to convene first-ever hearing on gay immigration equality
(Washington, DC) On Wednesday morning, the Senate Judiciary Committee will hold the first-ever Congressional hearing on obstacles faced by lesbian and gay couples under U.S. immigration law.
Senator Patrick Leahy (D-VT), chairman of the committee, has scheduled a 10 a.m. hearing on the Uniting American Families Act (UAFA). The bill, sponsored …
