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.
President Obama to Bestow Presidential Medal of Freedom on Harvey Milk
San Francisco – Today President Obama announced that he will honor assassinated civil rights leader Harvey Milk with the Presidential Medal of Freedom, the nation’s highest civilian honor recognizing significant contributions to the nation and the world. The President will also honor Senator Edward Kennedy and tennis legend Billie Jean King, an open lesbian and longtime champion for the rights of the lesbian, gay, bisexual, and transgender (LGBT) community, with the Medal of Freedom on August 12.
Last year, EQCA sponsored the first bill in the country to officially honor Milk, the nation’s first openly gay man elected to major political office, but the Governor vetoed it. Senator Mark Leno (D-San Francisco) introduced the Harvey Milk Day bill, sponsored by EQCA, again this year. The legislation would require the governor to annually proclaim May 22 as Harvey Milk Day, designating it as a “day of special significance,” to recognize Milk’s work to secure equal protections.
Equality California (EQCA) is the largest statewide lesbian, gay, bisexual, transgender-rights advocacy organization in California. In the past decade, EQCA has strategically moved California from a state with extremely limited legal protections for LGBT individuals to a state with some of the most comprehensive civil-rights protections in the nation. EQCA has passed over 50 pieces of legislation and continues to advance equality through legislative advocacy, public education and community empowerment. www.eqca.org
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Original source : http://gay_blog.blogspot.com/2009/07/president-oba…
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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Original source : http://gay_blog.blogspot.com/2009/07/obama-names-m…
Human Rights Campaign Calls on the LGBT Community and Allies to Participate in National, Grassroots Push to Lobby Congress Face-to-Face
The Human Rights Campaign, the nation’s largest lesbian, gay, bisexual and transgender (LGBT) civil rights organization, today launched a national, grassroots campaign called “No Excuses” to demand action from Congress on key issues of equality. Designed to take advantage of the congressional summer recess, when members are in their local offices and meeting with constituents, “No Excuses” will mobilize HRC’s 750,000 members and their allies to meet directly with lawmakers and push for federal legislative change. Members and supporters can get involved by visiting: http://noexcuses.hrc.org.
“While we salute and acknowledge the heroic members of Congress who have worked tirelessly on our behalf, far too many have dragged their feet on basic matters of fairness and equality that have lingered too long and hurt too many LGBT people and their families,” said Human Rights Campaign President Joe Solmonese. “Yes, there are many challenges facing this Congress and this president. But LGBT people often face additional hardship protecting their families, their loved ones and their jobs, and too few in Congress are willing to champion these issues of basic fairness. Now, more than ever, members of the LGBT community need to make their voices heard face-to-face and in the districts where they live.”
Using innovative online tools, one-on-one trainings and staff and volunteer follow-through, HRC members will press lawmakers to end discrimination in the military, treat all legally married couples equally, pass immigration reform that recognizes and honors LGBT families, outlaw workplace discrimination for LGBT employees, and treat all federal employees’ compensation equally.
The interactive “No Excuses” website allows supporters to download a meeting toolkit, schedule a meeting and report back on how it went. To take action, visit: http://noexcuses.hrc.org.
The in-district meetings will focus on the following key legislative priorities in the 111th Congress:
–Repeal the Defense of Marriage Act (DOMA), which denies legally married lesbian and gay couples more than 1,000 federal protections;
–Prohibit workplace discrimination for the LGBT community by passing an inclusive Employment Non-Discrimination Act (ENDA);
–Repeal “Don’t Ask, Don’t Tell” to ensure that service members who contribute to our nation’s security are no longer summarily discharged for who they are;
–Pass immigration reform that recognizes permanent same-sex couples and ends the painful separation of families;
–And provide health benefits equally to the nearly 3 million federal government employees, including same-sex domestic partners.
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Original source : http://gay_blog.blogspot.com/2009/07/human-rights-…
Metro is playing catch-up, say supporters of gay protections
The argument that protecting Metro government’s gay employees would force the private sector to follow suit is all backward, supporters of a new anti-discrimination measure say.
Around the country, 90 percent of Fortune 500 companies’ anti-discrimination policies include sexual orientation or gender identity. In Nashville, some of the city’s largest private employers — http://www.vanderbilt.edu/“>Vanderbilt University and http://www.hcahealthcare.com/“>Hospital Corporation of America — put similar policies into place.
Against that landscape, the new measure’s supporters say, it should have a better chance of passage than a similar one proposed in 2003. But opponents say following the private-sector pack isn’t the way to go.
“Just because someone else does something doesn’t mean it’s right, and we learned that when we all took off from kindergarten,” said David Fowler, a former state senator and president of the http://www.factn.org/“>Family Action Council of Tennessee. “So unless we are going to act like lemmings and just blindly do what everybody else is doing, we need to stop and think before we make this a law.”
The city already has protections based on race, sex, religious affiliation and national origin in place, Fowler said, and protection based on sexuality is incongruous. He also said such a law could expose the city to lawsuits by people who feel it was broken.
See Metro is playing catch-up, say supporters of gay protections
The Tennessean
* Tags = gay men gay news lesbian news transgender bisexual
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Original source : http://gay_blog.blogspot.com/2009/07/metro-is-play…
Obama to NAACP: “Our Gay Brothers And Sisters, Still Taunted, Still Attacked, Still Denied Their Rights”
“President Barack Obama on Thursday traced his historic rise to power to the vigor and valor of black civil rights leaders, telling the NAACP that the sacrifice of others “began the journey that has led me here.” The nation’s first black president bluntly warned, though, that racial barriers persist.” See Obama to NAACP: “Our Gay Brothers And Sisters, Still Taunted, Still Attacked, Still Denied Their Rights”
* Tags = gay men gay news lesbian news transgender bisexual
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Original source : http://gay_blog.blogspot.com/2009/07/obama-to-naac…
Maine campaign heats up
With the prospect of a November referendum on same-sex marriage in Maine all but certain, pro-equality advocates are gearing up for a bruising battle to preserve the state’s marriage equality bill, signed by Gov. John Baldacci in May. Since January, Maine Freedom to Marry has been ramping up a vast field campaign to identify pro-equality voters. Without a presidential or gubernatorial race to bring voters out, Maine Freedom to Marry campaign manager Jesse Connolly said grassroots fieldwork is essential to finding voters who support marriage equality and to turning them out at the polls on Election Day.
“This campaign is really about having one-on-one conversations with Maine voters. … We’re raising money, we’re building a campaign, but we’re really excited about this great work the field effort has been doing,” said Connolly.
Yet campaign finance reports suggest that pro-equality advocates may face an uphill battle. Thus far, anti-gay activists have outpaced pro-equality advocates in fundraising. Much of that money has come from the national religious right organizations that backed the successful campaign to pass California’s Proposition 8 last year. See Maine campaign heats up
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Original source : http://gay_blog.blogspot.com/2009/07/maine-campaig…
New straw poll of gay marriage leaders: Overturn Prop 8 in 2010
A straw poll of same sex marraige leaders gathered in San Bernardino Saturday just came in: The majority want to return to the ballot in 2010 to try to overturn Proposition 8. Final count of the nonbinding measure: 93 people voted to go in 2010, 49 in 2012 and 20 undecided.
The next step: Leaders will return to their organizations and then a final decision will be made in a couple of weeks. If they’re going to go for it in 2010, they’d better hurry. Ballot language is due to the Attorney General by Sept. 25.
Oh, yeah. And they still need a leader. And a leadership structure. And a decision-making process.
With that in mind, here’s a juicy rumor for you: Would President Obama confidante Steve Hildebrand be interested in coming out to California to lead the next same sex marriage ballot iniative campaign?
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Original source : http://gay_blog.blogspot.com/2009/07/new-straw-pol…
History Is on My Side, Says Calif. Justice Who Voted Against Gay-Marriage Ban
Carlos Moreno stood alone in May when he dissented from the decision upholding Proposition 8. But the California Supreme Court justice says history will prove him right — that denying gays and lesbians the right to marry is illegal discrimination.
“Someday at some point my dissent will be the majority view in California,” he said during an interview in his San Francisco chambers late Wednesday. “I think that’s where the law is headed.”
“Equal protection is either equal or it’s not,” he added. “It’s not the kind of thing you can chip away at.”
Moreno, one of four justices to back same-sex marriage last year and the sole vote against Prop 8 this year, took time to talk to The Recorder about his votes, his brief moment on the Obama administration’s short list for the nation’s highest court, and U.S. Supreme Court nominee Sonia Sotomayor’s controversial “wise Latina” comment.
Moreno’s dissent in Strauss v. Horton, 46 Cal.4th 364, came at a touchy time for him. He had been contacted by the Obama administration a week earlier as a possible replacement for retiring U.S. Supreme Court Justice David Souter. Since President Obama has officially stated his opposition to same-sex marriage, it could be assumed Moreno’s position on marriage and Prop 8 might be troublesome.
But, Moreno said, Obama’s vetters didn’t ask him how his Prop 8 vote — which wasn’t yet public — would go.
“They just asked if there were any high-profile cases — past or present, including on the trial court — that would be the kind of case that would draw attention.”
See History Is on My Side, Says Calif. Justice Who Voted Against Gay …
Law.com
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Original source : http://gay_blog.blogspot.com/2009/07/history-is-on…
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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Original source : http://gay_blog.blogspot.com/2009/07/gay-spouses-t…
