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.
House subcommittee approves benefits for same-sex partners
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Obama names Medal of Freedom recipients, including Harvey Milk …
President Obama, attempting to spotlight those who have acted as “agents of change,” today announced that he will bestow the Presidential Medal of Freedom, the country’s highest civilian honor, on a cast of living and deceased figures widely known in politics, the arts and sciences, sports and social movements.
The 16 honorees named by the White House today include Harvey Milk, the San Francisco city supervisor who led an early movement for gay rights in public life and was assassinated. They include the late Republican Congressman Jack Kemp, a football legend as well, and the ailing Democratic Sen. Edward M. Kennedy of Massachusetts.
The president’s choices, who will be honored at a White House ceremony Aug. 12, include American civil-rights activist the Rev. Joseph Lowery and South African freedom fighter Desmond Tutu. They include a pioneer in sports for women, tennis star Billie Jean King, and the first woman on the Supreme Court, retired Justice Sandra Day O’Connor.
They include actor Sidney Poitier and singer Chita Rivera.
See
Obama names Medal of Freedom recipients, including Harvey Milk …
They include actor Sidney Poitier and singer Chita Rivera.
See
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Gillibrand wins Senate hearing on military policy on gays
New York‘s Sen. href=”/topics/Kirsten_Gillibrand”>Kirsten Gillibrand said Monday she had won the commitment of the Senate Armed Services Committee to hold its first hearing this fall on the “don’t ask, don’t tell” policy on gays in the military.
The announcement is unusual because Gillibrand does not sit on the panel and did not push the issue in the last Congress, when she served on the House Armed Services Committee.
But the agreement by Senate Armed Services chairman Carl Levin (D-Mich.) capped a campaign Gillibrand has been waging in the last few weeks to scrap or suspend the controversial policy that has led the Pentagon to discharge thousands of gays and lesbians since 1994.
See Gillibrand wins Senate hearing on military policy on gays
Newsday
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A Brutal Gay-Bashing In ptown
Andrew Sullivan reports: “I was shocked tonight to bump into a new friend, Mark, hobbling down the street. I was about to make a joke as I rode up behind him on my bike and then saw his face. It was a blur of blood and bruises. Friday night, he was leaving the Atlantic House – an historic gay pub in Ptown – when a group of three local kids hiding in an alley-way to target gays threw a bottle at his face and called him a faggot. He threw the bottle back and then they set upon him. He’s not a slight guy, he’s strong and built and bearded. But he was clearly reeling from the assault and will return to the hospital tomorrow. The cops apparently responded heroically and after a chase captured the assailants.” See A Brutal Gay-Bashing In ptown
Atlantic Online
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Diocese of Niagara to offer same-sex blessings
As of Sept. 1, the diocese of Niagara will allow its priests to bless same-gender couples who have been civilly married.
Niagara becomes the second diocese in the Anglican Church of Canada, after the Vancouver-based New Westminster, to offer a sacrament for same-sex blessings. (The diocese of New Westminster, which allowed same-sex blessings in 2002, currently limits the rite to eight parishes.) The issue of same-sex blessings continues to deeply divide Anglicans in Canada as well as worldwide.
“The Niagara Rite is intended for the voluntary use of priests who wish to offer a sacrament of blessing regardless of the gender of the civilly married persons…” the diocese of Niagara said on its Web site, www.niagara.anglican.ca
The rite may also be used for the blessing or renewal of vows for couples “celebrating a significant moment in their married life together,” said an introduction to the Niagara Rite.
The approval of the rite came five years after the diocesan synod of Niagara passed a motion allowing civilly-married gay couples, “where at least one party is baptized,” to receive a church blessing. The diocesan bishop at that time, Ralph Spence, had refused to implement the motion. In January 2008, a similar motion was approved by Niagara’s diocesan synod, and this time, Bishop Spence gave his approval, but said he reserved the right to determine when the same-sex blessings would move forward.
Last fall, Bishop Spence’s successor, Michael Bird, informed a meeting of the Canadian house of bishops that he intended to develop the rite, saying, “I believe we are among those who have been called by God to speak with a prophetic voice on this subject.”
Under a list of protocols outlined by Bishop Bird, a cleric who wishes to offer the Niagara Rite must contact the bishop’s office “so that a conversation can take place between the bishop and the cleric involved.” The cleric is expected to provide details about the couple the cleric intends to bless “and should be prepared to have a conversation about the response of the parish to the blessings,” the list added. “A date for such a blessing should not be confirmed with the couple until after this conversation with the bishop has taken place.”
A parish is not required to get the approval of its vestry before it can offer such blessings.
Two other dioceses – Montreal and Ottawa – have also informed the house of bishops about their intention to move ahead with same-sex blessings. At that meeting, the house of bishops issued a statement saying that a “large majority” of its members could affirm “a continued commitment to the greatest extent possible” to a moratorium on the blessing of same-sex unions. But it acknowledged that the moratorium, which had been sought by the Archbishop of Canterbury and the primates of the Anglican Communion, would be difficult for some dioceses “that in confidence have made decisions on these matters.”
The issue of whether dioceses can offer same-sex blessings is likely to be revisited at the 2010 meeting of General Synod, the governing body of the Anglican Church of Canada. In 2007, General Synod had agreed that blessing rites for gay couples are “not in conflict” with core church doctrine, but refused to affirm the authority of dioceses to offer them. General Synod delegates had also voted to study revising the marriage canon (church law) to allow priests to marry all legally qualified persons. Marriage for gay people has been legal in Canada since 2005.
Last spring, Council of General Synod (CoGS), the church’s governing body in between General Synod meetings, decided not to ask General Synod 2010 to amend the marriage canon to allow for the marriage of same-sex couples. The decision was made after the faith, worship and ministry committee, which was asked by CoGS to prepare “a theological rationale to allow for the marriage of all legally qualified persons,” said that it found the request problematic. Janet Marshall, committee chair, told CoGS that some members felt uncomfortable about being asked to create a rationale for only one side of the argument.
See Diocese of Niagara to offer same-sex blessings
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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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Gay marriage will be issue in Iowa House special election Daily Kos
Iowans in House district 90 will elect a new state representative in a special election on September 1, and the Republican candidate appears to be planning to make same-sex marriage a major campaign issue.
The seat opened up when State Representative John Whitaker, a Democrat, accepted a position with the U.S. Department of Agriculture. Republicans didn’t even run a candidate against Whitaker in 2008, but Iowa House district 90 has been competitive in the recent past. The southeastern Iowa district contains all of Van Buren County and parts of Wapello and Jefferson counties, including the Fairfield area (home to Maharishi University and the so-called “Silicorn Valley”).
The Democratic candidate for the special election is Curt Hanson, a retired driver’s education teacher who has won various teaching awards. Hanson plans to campaign on bread-and-butter issues: jobs, health care, education, and balancing the budget.
See Gay marriage will be issue in Iowa House special election
Daily Kos
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Gay spouses to get AAA discounts Florida Times-Union -
AAA Auto Club South will now allow same-sex married couples to receive spousal discounts under AAA’s Associate Membership program, a rights group that advocates for gay, lesbian, bisexual and transgender people announced Thursday.
The company met with members of Equality Florida on Wednesday after the group received calls from gay couples who had been denied family memberships.
“Our policy does include gay and lesbian spouses, wherever they were married. Whether in other states or countries, they qualify,” said Tom O’Brien, president and chief executive officer of AAA Auto Club South, in a statement.
Gay marriage is not legal in Florida but has been approved in other states.
See Gay spouses to get AAA discounts
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