Colorado gets first lesbian justice
Monica Marquez was sworn in to the Colorado Supreme Court, quickly said she’s not biased.
People mad at lesbian NYC building
People mad at lesbian NYC building
Church court trial starts for minister
A lesbian Presbyterian minister who performed same-sex marriages is on trial in the church.
Lesbian cadet quits over DADT
Katherine Miller quit West Point because DADT forced her to endure sexual harassment.
Lesbian claims assault at NOM rally
Lesbian claims assault at NOM rally
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.
Cardinal: Catholic schools welcome kids of gays – but priest made OK call
(Boston) Boston Cardinal Sean O’Malley on Wednesday defended a priest who denied admission to a parish school to a gay couple’s child, calling it a pastoral decision and saying the priest had his “full confidence and support.”
O’Malley’s comments on his blog were his first public remarks about the decision earlier this month by St. Paul Elementary School in Hingham to rescind the boy’s acceptance because his parents are lesbians.
A parent of the boy said the Rev. James Rafferty, the parish priest at St. Paul’s, said her relationship was “in discord” with church teachings, which sees marriage as only between a man and a woman. She said the principal told her teachers wouldn’t be prepared to handle the boy’s questions when he realized the church’s view of family conflicted with what he saw at home. The parent spoke to The Associated Press but asked not to be named to protect the welfare of the child.
The decision prompted calls for O’Malley to intervene. The Catholic Schools Foundation, which O’Malley chairs, said the decision was at odds with Gospel teaching, and it wouldn’t fund schools that made similar decisions.
The archdiocese’s head of education later called the parent, apologized and offered to help the 8-year-old enroll in another Catholic school.
O’Malley said Rafferty had come under “undue criticism” for the decision.
“He made a decision about the admission of the child to St. Paul School based on his pastoral concern for the child,” O’Malley wrote. “I can attest personally that Father Rafferty would never exclude a child to sanction the child’s parents.”
The archdiocese said it is creating a policy to clarify its schools don’t bar children with same-sex parents.
“It is true that we welcome people from all walks of life,” O’Malley wrote. “But we recognize that, regardless of the circumstances involved, we maintain our responsibility to teach the truths of our faith, including those concerning sexual morality and marriage.”
O’Malley began his post with a recollection about meeting the young daughter of a murdered woman who had run a brothel while he was bishop in the West Indies. He said the woman’s daughter had left public school because she was being badly taunted, and he immediately directed that the girl be admitted to the local Catholic school.
“Catholic schools exist for the good of the children and our admission standards must reflect that,” he wrote. “We have never had categories of people who were excluded.”
The Hingham case was similar to a situation in Boulder, Colo., in which a Catholic school said two children of lesbian parents could not re-enroll because of their parents’ sexual orientation, and the Denver Archdiocese backed the decision.
“It is clear that all of their school policies (in Denver) are intended to foster the welfare of the children and fidelity to the mission of the Church,” O’Malley wrote. “Their positions and rationale must be seriously considered.”
Lesbian State Rep.: I’m engaged
State Rep. announces event in legislative chamber. Hopes event will earn new support.
Lesbian fed. judge confirmed
After a GOP Sen. held her nomination for a year, Demeo was confirmed to the DC Superior Court.
Corvino: Gay parents and biological bonds
Those who argue that same-sex parenting “deprives” a child of its mother or father sometimes ask, “How would you feel if your mother or father were taken away?”
My answer to that question is, of course, “I’d feel terrible.” But that fact scarcely settles the matter.
I’d feel terrible if anyone close to me were taken away. But that presupposes that the person “taken away” is already a part of my life. It doesn’t follow that their not being present in the first place would “deprive” me.
My grandparents were all an important part of my life, but suppose they had all died before I was born. Would anyone have accused my parents of “depriving” me of grandparents, simply by bringing me into existence? Of course not.
I grant that the cases are not exactly parallel. If my grandparents had died before I was born, my parents could hardly be held responsible for their absence (barring matricide or patricide).
By contrast, the lesbian who visits a sperm bank—just like straight women who visit sperm banks—may consciously intend to raise a child in its biological father’s absence, and thus has some responsibility for that absence (as does the father).
It is this fact that bothers our opponents. In their view, the lesbian and others in this (hypothetical but common) case are conspiring to deprive the child of its biological father. If we care to answer their concerns, we need to address this case.
Before doing so, however, it is worth pointing out several things. First, the objection doesn’t touch those who become parents by adoption. In such cases, opponents might still object that the lesbian is depriving the child of SOME father. But they can’t coherently claim that she is depriving it of ITS OWN father—and that is the objection I wish to focus on here. (Presumably, its own father is no longer in the picture—hence the adoption.)
Second, the objection applies equally to heterosexual women who seek anonymous sperm donors. Most people who use sperm banks are heterosexual, and most gays and lesbians never use sperm banks. So this is not an objection to gay parenting or gay marriage per se.
Third, and related, when applied to same-sex marriage the objection involves a blatant non-sequitur. It is one thing to argue against anonymous sperm donation. It is quite another to use that argument to oppose marriage for gays and lesbians. For even if one accepts the “no sperm banks” argument, it seems unfair to punish those gays and lesbians who do not use them. It is also unfair to punish those children whose parents did use them: such children exist, after all, and forbidding marriage to their parents (i.e. the ones that care for them) makes their lives less stable.
With these caveats in mind, we can return to the question at hand: is the lesbian (or for that matter, the straight woman) who uses an anonymous sperm donor “depriving” the child of its biological father?
The problem with answering this question is that the word “depriving” is so loaded that any response is likely to have unintended (and unpalatable) side effects. Answer “yes,” and you insult the many good mothers who have used anonymous sperm donors and have provided wonderful lives for their resulting children. You also potentially hurt the children, by suggesting to them that they lead “deprived” lives.
Answer “no,” and you seem to ignore the research that says that children do better, on average, with their own biological parents than in other family forms. You also suggest that there’s nothing special about growing up with one’s own biological father.
I for one wouldn’t want to make the latter claim. That’s partly because I am moved by the firsthand stories of people who have grown up not knowing one or more of their biological parents and feel a genuine sense of loss as a result. Their longing is real and should not be lightly dismissed.
But it’s also because I myself feel that there’s something special about the biological bond I have with my parents. The fact that I am literally flesh of their flesh moves me, for reasons that go beyond sentimentality.
The question is whether we can acknowledge this significance without casting aspersions on those whose parent-child bonds are non-biological.
I think we can. To say that the biological bond is special is not to say that it’s the only significant bond, or that those who lack it are deprived of something necessary (much less sufficient) for a strong and healthy parent-child relationship.
More to the point, to say that the biological bond is special is hardly justification for “depriving” an entire group of people of the opportunity to marry.
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John Corvino, Ph.D. is an author, speaker, and philosophy professor at Wayne State University in Detroit. His column “The Gay Moralist” appears Fridays on 365gay.com.
For more about John, visit www.johncorvino.com [1].
[1] http://www.johncorvino.com
