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.
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PBS will be airing another hard-hitting P.O.V. series documentary, which on June 30 (10 p.m.). “Beyond Hatred” is the story of a family trying to recover after the 2002 murder of a gay man. Here’s a summary from PBS:
“In September 2002, three skinheads were roaming a park in Rheims, France, looking to “do an Arab,” when they settled for a gay man instead. Twenty-nine-year-old François Chenu fought back fiercely, but he was beaten unconscious and thrown into a river, where he drowned. The acclaimed French vérité film Beyond Hatred is the story of the crime’s aftermath; above all, of the Chenu family’s brave and heartrending struggle to seek justice while trying to make sense of such pointless violence and unbearable loss. With remarkable dignity, they fight to transcend hatred and the inevitable desire for revenge.
Shot in direct-cinema style, with dark tones and long, evocative takes, Beyond Hatred forgoes third-party narration to let those who must deal with the crime’s aftermath tell the story — the lawyers and prosecutors as they seek justice through the courts, those who knew the victim and his murderers, and even the father of one of the perpetrators. Most of all we hear from the Chenus: François’ father, Jean-Paul, and mother, Marie-Cécile, and his two brothers and two sisters, as they try to reconstruct what happened and face the horror of François’ last minutes.
You can watch the trailer here. This documentary goes to show that hate crimes are still alive and well worldwide. I hope you’ll tune in. See Documentary on murder of a homosexual
Waterbury Republican American
* Tags = gay men gay news lesbian news transgender bisexual
By mid-afternoon, authorities reportedly had someone in custody in connection with the murder of Wichita abortion doctor George Tiller at his church on Sunday morning.
So far, we know nothing about the suspect. Though the motive for the crime we can all surmise in light of the vitriolic campaign that has been waged against Tiller for more than two decades by anti-abortion groups.
And if we’re right about that, then we already know the identities of his accomplices.
They include every one who has ever called Tiller’s late term abortion clinic a murder mill.
Who ever called Tiller “Tiller the Killer.”
The groups who spent decades fomenting hate toward a man who simply believed that he was serving a purpose by being one of the few doctors in the country performing late-term abortions.
Hate. Not heated opposition. Not strong disagreement.
But blind hatred.
The kind of hate that would prompt some maniac to take a gun into a church and shoot a man to death in front of friends and family.
His accomplices know they have blood on their hands, which might explain why they were quick to issue statements today expressing disapproval of Tiller’s murder.
Among them, the anti-abortion group Operation Rescue.
“Operation Rescue denounces the killing of abortionist Tiller,” read the headline of a new release posted on that group’s website.
Those words drip with hypocrisy.
After all, it was Operation Rescue that coined the nickname “Tiller the Killer.” It was Operation Rescue that was most responsible for ratcheting up the heated rhetoric toward Tiller over the past two decades.
The group issued the following statement today:
“We are shocked at this morning’s disturbing news that Mr. Tiller was gunned down. Operation Rescue has worked for years through peaceful, legal means, and through the proper channels to see him brought to justice. We denounce vigilantism and the cowardly act that took place this morning. We pray for Mr. Tiller’s family that they will find comfort and healing that can only be found in Jesus Christ.”
Shocked? Are any of us really shocked that it would come to this after the many years of demonizing one man?
Certainly the group’s founder, Randall Terry, didn’t seem shocked when he issued a statement that, I would suggest, provides a truer sense of how the anti-abortion movement saw today’s events:
”George Tiller was a mass-murderer. We grieve for him that he did not have time to properly prepare his soul to face God. I am more concerned that the Obama Administration will use Tiller’s killing to intimidate pro-lifers into surrendering our most effective rhetoric and actions. Abortion is still murder. And we still must call abortion by its proper name; murder.
Those men and women who slaughter the unborn are murderers according to the Law of God. We must continue to expose them in our communities and peacefully protest them at their offices and homes, and yes, even their churches.”
I’d suggest that if anyone is in need of salvation right now it’s the anti-abortion movement in Kansas and across the nation.
As Terry’s statement makes clear, the same bullet that killed George Tiller also shattered the moral underpinnings of the movement that inspired its firing.
(New York City) A 19-year-old Brooklyn man has been convicted of murder in the stabbing of a gay man he claimed had flirted with him, but the jury was not allowed to consider whether the killing was a hate crime.
Omar Willock had been charged with murder as a hate crime …
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