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.”
Our Genders, Our Rights
NEW YORK, NY - – - The Issues Magazine launched “Our Genders, Our Rights,” its Summer 2009 edition. A unique combination of articles, poetry, art and videos focus on a topic that is both utterly fundamental and wildly revolutionary: gender norms and gender identity.
Top writers discuss sex-selection abortion, gender expression, “Intersex” self-identification and a first-hand account of forced sex roles inside a polygamist compound in Texas.
Publisher and Editor-in-Chief Merle Hoffman’s editorial, “Selecting The Same Sex,” provides philosophical and personal insights into the issue of sex-selection abortion.
“There is one place where the definition of gender remains binary — in the womb. When it comes to sonograms, amniocentesis and standard pre-natal testing, there are no nuances. Here, the pronouncement, ‘It’s a girl,’ can translate into fierce and instant parental rejection. The fact is that when the issue is ‘sex selection abortion,’ the same sex is always being selected — female.” For Hoffman, this issue highlights questions of ethics, human rights and the moral autonomy of women.
“It’s about separating the chooser from the choice,” writes Hoffman.
In “Busting Bogus Biology and Beliefs” Mahin Hassibi notes: “For centuries, social constructs held that women owed allegiance and obedience to their husbands; children were the property of their fathers, who owned the children’s mothers.” Today, Hassibi says, discoveries in biology and reproductive technology may soon trump historical and cultural restrictions that wrongly limited women’s lives.
“My children would have undoubtedly been among the 439 seized in the raid,” writes Carolyn Jessop of the sweep through the polygamist compound. In, “American Taliban: Sect Controls Women’s Destinies,” Jessop gives an inside view of the abuse, misogyny and control of women’s bodies that continues today.
Writers also plunge into transgender concerns. “Asylum Pitfalls May Await the Transgender Applicant” by Victoria Neilson discusses the difficult process for trans applicants in the U.S. Eleanor Bader’s “Trans Health Care Is a Life and Death Matter” describes a pioneering feminist health program for trans patients in the South.
Photographic performer Tammy Rae Carland visualizes gender fluidity as the featured artist, and art editor Linda Stein conducts an interview with Elizabeth Sackler, whose passion for feminist art resulted in a new center at the Brooklyn Museum.
ABOUT US
On The Issues Magazine (www.ontheissuesmagazine.com) is a progressive, feminist, quarterly online magazine. Read more at the site — free and with archives from 1983. Merle Hoffman is the Publisher and Editor-in-Chief.
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Prosecutors drop case against gay couple accused of trespassing on LDS property
Prosecutors won’t pursue a case against two men accused of trespassing on LDS Church property earlier this month. An LDS Church security guard detained a gay couple on Salt Lake City’s Main Street Plaza on July 9 after observing the pair “kissing and hugging,” according to a police report. Derek Jones and Matt Aune were cited for trespassing after refusing to leave. The incident led to two kiss-in protests against the church in Salt Lake City and one in San Diego. Aune has said the couple’s display of affection was modest, but officials with The Church of Jesus Christ of Latter-day Saints, which owns the plaza, released a statement that the two men were “much more involved” than a “simple kiss on the cheek.” It said the couple “engaged in passionate kissing, groping, profane and lewd language, and had obviously been using alcohol.” In a statement released Wednesday, Salt Lake City Prosecutor Sim Gill said the trespassing case against Jones and Aune has been dropped. Gill said despite that Main Street Plaza is owned by the church, there “continues to be a mistaken belief by many visitors that there is a public right of way.”
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‘Two-Track’ Church Suggested by Archbishop of Canterbury
PARIS — The Most Rev. Rowan Williams, the archbishop of Canterbury, said profound differences among the world’s 77 million Anglicans over gay clergy and same-sex unions could divide their church into a “two-track model” yielding “two styles of being Anglican.”
The formula could avert a formal breach between liberals and conservatives but bring new strains in the relationship between the global Anglican Communion and American Episcopalians who resolved this month to open the door to ordaining openly gay bishops and to start the process of developing rites for same-sex marriages.
Archbishop Williams insisted that the issue should not be debated “in apocalyptic terms of schism and excommunication but plainly as what they are — two styles of being Anglican.”
In a lengthy message published Monday on his Web site, the archbishop offered a detailed and nuanced response to events at the Episcopal convention in Anaheim, Calif., this month when gay-rights advocates in the United States chalked up major victories over conservatives on sexual issues. The Episcopal Church is the official branch of the Anglican Communion in the United States.
The developments were seen by liberals and conservatives as likely turning points in the history of the divided Episcopal Church, reflecting the profound rifts over sexual issues within Anglicanism — the world’s third largest network of Christian churches after the Roman Catholic and Orthodox Churches. The differences have crystallized around the Episcopal Church’s consent in 2003 to the consecration of the church’s first openly gay bishop, V. Gene Robinson of New Hampshire.
The Episcopalians had agreed to a moratorium on the election of gay bishops, but it was lifted at the convention in Anaheim.
The archbishop of Canterbury is the spiritual head of the Anglican Communion, which is composed of 38 provinces worldwide. The Episcopal Church claims about 2.3 million members.
In his message, Archbishop Williams repeated his view that “a blessing for a same-sex union cannot have the authority” of the full Anglican Communion, any more than a blessing for a heterosexual couple living outside marriage would have.
That, in turn, means that as long as the broader church “as a whole does not bless same-sex unions, a person living in such a union cannot without serious incongruity have a representative function in a Church whose public teaching is at odds with their lifestyle.”
The issues have confronted the archbishop with deep divisions not simply between liberals and conservatives in the United States but also across the broader church with its many followers in Africa, Britain and elsewhere. Four conservative dioceses in the United States and many individual Episcopal churches have broken away from the national denomination to forge alliances with conservative Anglican groups such as the Anglican Church of Nigeria.
Archbishop Williams said: “There is at least the possibility of a twofold ecclesial reality in view in the middle distance: that is, a ‘covenanted’ Anglican global body, fully sharing certain aspects of a vision of how the Church should be and behave, able to take part as a body in ecumenical and interfaith dialogue; and, related to this body, but in less formal ways with fewer formal expectations, there may be associated local churches in various kinds of mutual partnership and solidarity with one another and with ‘covenanted’ provinces.”
The archbishop has promoted the idea of covenant — described by some analysts as a kind of good-behavior guide for churches — to overcome the rift.
“This has been called a ‘two-tier’ model, or, more disparagingly, a first- and second-class structure,” the archbishop’s message said. “But perhaps we are faced with the possibility rather of a ‘two-track’ model, two ways of witnessing to the Anglican heritage, one of which had decided that local autonomy had to be the prevailing value and so had in good faith declined a covenantal structure.”
The message continued: “It helps to be clear about these possible futures, however much we think them less than ideal, and to speak about them not in apocalyptic terms of schism and excommunication but plainly as what they are — two styles of being Anglican, whose mutual relation will certainly need working out but which would not exclude cooperation in mission and service of the kind now shared in the Communion.”
See Anglican Sees ‘Two-Track’ Church @ New York Times
- Archbishop warns ordination of gay clergy could lead to two-tier … guardian.co.uk
- Anglican Head Warns Of Two-Tier Church After Gay Vote On Top Magazine Archbishop of Canterbury responds to General Convention actions on … Austin American-Statesman
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Backers of Gay Marriage Rethink California Push
LOS ANGELES — Discouraged by stubborn poll numbers and pessimistic political consultants, major financial backers of same-sex marriage are cautioning gay rights groups to delay a campaign to overturn California’s ban on such unions until at least 2012.
Earlier this year, many supporters of same-sex marriage seemed eager to mount a 2010 campaign to overturn Proposition 8, which was passed by California voters in November and defined marriage as “between a man and a woman.”
But the timing of another campaign has since been questioned by several of the movement’s big donors, including David Bohnett, a millionaire philanthropist and technology entrepreneur who gave more than $1 million to the unsuccessful campaign to defeat Proposition 8.
“In conversations with a number of my fellow major No on 8 donors,” Mr. Bohnett said in an e-mail message, “I find that they share my sentiment: namely, that we will step up to the plate — with resources and talent — when the time is right.”
“The only thing worse than losing in 2008,” he added, “would be to lose again in 2010.”
The issue of when to go back to the polls was also the central topic at a contentious “leadership summit” held Saturday at a church in San Bernardino, east of Los Angeles, where about 200 gay rights advocates gathered to discuss their next step. It was the second large meeting of gay leaders since late May when the California Supreme Court ruled against a legal challenge to Proposition 8, which passed with 52 percent of the vote.
Shortly after the court’s decision, officials at Equality California, one of the largest gay rights groups in California, issued an online plea for donations for a possible 2010 campaign, citing a need to capitalize on anger over the decision and on the seeming momentum from the recent legalization of same-sex marriage in several other states.
But that thinking has apparently evolved.
Marc Solomon, marriage director for Equality California, said he spent June and early July asking the opinions of nearly two dozen California political consultants and pollsters and had been surprised by the almost unanimous opinion that a 2010 race was a bad idea.
“I expected having watched the protests and the real pain that the L.G.B.T. community had experienced that there would be some real measurable remorse in the electorate,” Mr. Solomon said, referring to lesbian, gay, bisexual and transgender people. “But if you look at the poll numbers since November, they really haven’t moved at all.”
A major factor in any California balloting, of course, is money; campaigns here are remarkably expensive, with a number of costly media markets. The Proposition 8 campaign, for example, cost more than $80 million, with opponents spending some $43 million.
Sarah Callahan, ch
See Backers of Gay Marriage Rethink California Push
New York Times
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Higher level of abuse among same-sex couples than straight ones, Hong Kong study
In harm’s way: Higher level of abuse among same-sex couples than straight ones, Hong Kong study
Four times as many individuals in a same-sex relationship than in a straight one have reportedly been victimised by physical assault, according to a landmark study by the Chinese University of Hong Kong (CUHK) and the Women Coalition of HKSAR.
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After the break-up, what about the lake house?
IT was a perfect party — vodka lemonade on a dock overlooking a lake, dozens of close friends, a cool misty night in the country a couple of hours north of New York.
Inside, the house spoke of a passionate interest in style, and of a committed relationship. Silhouettes of the couple who owned the house hung on a wall in the master bedroom; the couple’s nickname — Benford — was spelled out in large letters leaning against a wall in the kitchen.
But the couple, Benjamin Dixon, 31, and Bradford Shellhammer, 33, who had planned the evening as a commitment ceremony, had broken up three months earlier. Still, with airplane tickets purchased by some of the guests, a catering deposit paid and a house they haven’t been able to sell, they figured it made sense to go ahead and have a party anyway.
Their tale of lost love has a familiar arc — love sparks, then blooms; lives intertwine; moments are lost and misunderstandings creep in; eventually the two begin to live as strangers — and an epilogue that has become increasingly familiar as well, as unwanted houses become prisons rather than cocoons.
Rather than being a glossy testament to their taste and their partnership, their house in Stanfordville, in Dutchess County, is now a dead weight that entangles them and makes it impossible to move on. Having bought it and an apartment in Manhattan at the height of the real estate boom (and having made an agreement with a third partner in their lake house property not to sell it until December 2009), they are left with joint custody of two large mortgages. They are also left with two carefully decorated homes filled with one-of-a-kind accessories found on eBay and quirky furnishings by high-end designers like the Dutch collective Droog that are reminders of what came before and, Mr. Dixon said, “big reminders of what was supposed to be.”
See After the break-up, what about the lake house?
New York Times
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Married lesbian couple seeks protection in India
LUCKNOW: Even as the country debates pros and cons of legalising the same sex marriages and the Central government finds itself in a fix over the issue, a lesbian couple tied nuptial knot defying all social norms in Muzaffarnagar, known for honour killings and fundamentalist diktats by caste-based panchayats.
This is not all. Two days after the incident hit the headlines, the Muzaffarnagar district administration received another application for same sex marriage from another lesbian couple. While in the first case, officers have provided security to the newly wedded, they have not given permission to the second couple fearing a backlash from the community. Significantly, in both the cases, the couples belong to low income group and are not highly educated.
In the first case, Komal Sharma and Pinki Kashyap entered into wedlock and left their families to live together. The couple hails from Dayanand Nagar, a small locality in Shamli tehsil of Muzaffarnagar district. While Komal belongs to a Brahmin family and is educated till class XI, Pinki hails from an other backward class family and has studied only till class VIII. Komal’s father Rajendra Sharma is with home guard and Pinki’s father Hariram runs a small dairy.
The two girls met three months back in a vocational training centre where both had enrolled for a course in stitching. The friendship soon turned into love and they got secretly married through Arya Samaj rituals at a temple in Muzaffarnagar. They also to have entered wedlock legally through a court marriage in Delhi. While Pinki posed as the groom, Komal dressed as a bride.
The couple kept their marriage a secret till July 23, the day they left their families. According to police, Pinki came to Komal’s house in the morning of July 23 when Komal was alone with her two younger siblings. The duo gave sleeping pills mixed in cold drink to the Komal’s younger brother and sister and left the house. The two girls also filed an application in the office of Senior Superintendent of Police (SSP), Muzaffarnagar, complaining that they have threat to their lives from their families. See Married woman marries her ‘girlfriend’ in west UP Times of India
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Human Rights Campaign PAC, Gay & Lesbian Victory Fund Endorse Anthony Woods For U.S. Congress
The Human Rights Campaign PAC, the nation’s largest lesbian, gay, bisexual and transgender civil rights organization, and the Gay & Lesbian Victory Fund, which works to grow the number of openly LGBT elected officials across the U.S., announced today the endorsement of Anthony Woods for U.S. Congress. Woods, who is running in the September 1 Special Election for California’s 10th Congressional District, earned the Bronze Star after serving two tours in Iraq in the U.S. Army. He was honorably discharged after challenging the military’s “Don’t Ask, Don’t Tell” law.
“The Human Rights Campaign is proud to endorse Anthony Woods, a veteran of the Iraq war and steadfast advocate for our community, to become the next U.S. Congressman from California’s 10th district,” said Human Rights Campaign President Joe Solmonese. “Anthony hasn’t just shown his support on issues of LGBT equality, he’s lived them — especially the repeal of ‘Don’t Ask, Don’t Tell.’ Anthony’s support of marriage equality will also be important as we work to repeal Proposition 8, which stripped marriage rights away for California’s same-sex couples. There is no doubt that Anthony will be a role model for LGBT youth, and we applaud his continuing service to our country.”
“Anthony Woods is an exciting candidate with a tremendous record of accomplishment. He’s also running an impressive campaign. Anthony has assembled a solid campaign team that understands what it will take to win this extremely competitive race. We need more leaders like Anthony Woods in the U.S. Congress, so we are proud to endorse him,” said Chuck Wolfe, president of the Gay & Lesbian Victory Fund. “His will be an authentic voice not only for the people of California’s 10th Congressional District, but for the millions of Americans for whom the promise of equality remains unfulfilled.”
“I am honored and proud to earn the support of Human Rights Campaign and the Gay & Lesbian Victory Fund,” said Anthony Woods, candidate for California’s 10th Congressional District. “They’re working to make sure America lives up to its promise of equality under the law, which is something I’ll fight for in Congress.”
Anthony Woods was born and raised in Fairfield, California. He is a graduate of West Point and earned his masters degree from the Kennedy School of Government at Harvard University. In addition to his years of service in the Army, Woods has worked on economic policy issues in both the public and private sectors. To learn more visit: www.AnthonyWoodsForCongress.com.
The Human Rights Campaign is America’s largest civil rights organization working to achieve lesbian, gay, bisexual and transgender equality. By inspiring and engaging all Americans, HRC strives to end discrimination against LGBT citizens and realize a nation that achieves fundamental fairness and equality for all.
The Gay & Lesbian Victory Fund is the only national organization dedicated to increasing the number of openly LGBT elected officials at all levels of government in the U.S.
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