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.
10-year-old boy put on ‘hate register’
10-year-old boy put on ‘hate register’
Swedish lesbians suck sperm banks dry
Sweden’s fertility clinics are racking up a serious backlog of people waiting for artificial insemination, due in part to a “spike” in demand from lesbian couples for vital supplies of man juice.
So bad have things got that expectant customers at Sahlgrenska University Hospital in Gothenburg are now forced to wait 18 months for treatment.
See Swedish lesbians suck sperm banks dry
Register
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Courts unlikely to strike down new domestic partner registry until after it begins
An attorney for those hoping to strike down Wisconsin’s new legal protections for domestic partners says he hopes the Supreme Court will decide their request in a matter of weeks.
But by then, gay couples will have already started registering at county courthouses for the benefits. Those sign-ups begin a week from Monday.
Three members of the Wisconsin Family Action group asked the Supreme Court yesterday to declare the domestic partner registry unconstitutional.
They say it violates the constitutional amendment against gay marriage and civil unions which group members helped pass in 2006.
The group calls it an effort to redefine marriage in Wisconsin. But a spokesman for Gov. Jim Doyle, who included the registry in the new state budget, says it’s just a set of basic protections, and it has nothing to do with promoting gay marriage.
Four of the seven justices would have to agree to take the case, and their new session does not begin until September.
See Courts unlikely to strike down new domestic partner registry until … Hudson Star Observer
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Wash. gay partnership foes say “too close to call”
OLYMPIA, Wash. —
Washington state’s latest expansion of domestic partnerships for gay couples was hanging in limbo Friday as opponents announced a final push to force a public vote, calling their effort so far “too close to call.”
In a statement to supporters, organizers of the Referendum 71 campaign said they believe they will have at least the minimum 120,577 petition signatures needed by Saturday to qualify for the ballot.
However, R-71 organizer Gary Randall said the campaign doesn’t have enough extra signatures to act as a cushion for erroneous or duplicate petition signatures, which must come from registered Washington voters.
To help meet the deadline, Randall appealed to R-71 supporters to gather additional signatures and drive them to the state Capitol on Saturday afternoon.
“We’re not trying to have a rally or anything,” Randall said later by telephone. “We need the signatures, we truly do.”
The new “everything but marriage” expansion of domestic partnerships is scheduled to take effect Sunday, but the law will be delayed if referendum sponsors turn in their petitions.
See Wash. gay partnership foes say “too close to call”
Seattle Times
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A political fight over the rights of same-sex…
A political fight over the rights of same-sex couples is drawing nearer in Washington State.
Backers of Referendum 71, who want to overturn a new state same-sex partnership law, have made an appointment to file signatures with state elections officials Saturday afternoon.
Saturday is the deadline to collect 120,577 valid voter signatures and qualify for the Nov. 3 state ballot.
Protect Marriage Washington is the primary backer of R-71. Gary Randall of the allied Faith and Freedom Network said by e-mail: “We are gathering and counting signatures. I think we are making good progress.”
Protect Marriage has raised just more than $20,000 for a campaign that so far has been waged mostly through churches. Randall said the group is not anti-gay but pro-marriage. The group wants voters to reject Senate Bill 5688, the “everything but marriage” legislation that passed this year and adds about 250 rights of marriage for registered same-sex partners in Washington.
Defenders of the new state law, who call themselves Washington Families Standing Together, say they are ready to defend the third round of rights lawmakers added since creating the partners registry in 2007.
See Washington State braces for battle over same-sex rights
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Lawsuit Challenges Wis. Domestic Partnership Law
Social conservatives asked the Wisconsin Supreme Court on Thursday to strike down the state’s new domestic partnership law, saying it violates a constitutional ban on gay marriage.
The lawsuit, filed by three members of Wisconsin Family Action, acknowledges the court will not have time to act before the law goes into effect next month but says justices should halt registrations as soon as possible.
Democratic Gov. Jim Doyle signed the law in the state budget last month. Starting Aug. 3, same-sex couples can register with counties to receive dozens of the same legal protections as married couples, including the right to inherit assets, make hospital visits and take medical leave to care for an ill partner.
Wisconsin became the first Midwestern state to enact legal protections for same-sex couples through the Legislature. It also became the first nationwide to allow domestic partnerships despite having a ban on gay marriage and any “substantially similar” relationships. See Lawsuit Challenges Wis. Domestic Partnership Law WCCO
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What will parents do to avoid having a gay son?
In the early 1990s, when genetic research was far less advanced than today, Jonathan Tolins posed the question: If a woman knew in advance that her male baby would be born gay, would she still go through with the pregnancy?
That’s the premise of his 1992 drama “The Twilight of the Golds,” which was filmed for cable television in 1997 and which receives an emotionally gripping staging courtesy of Theatre Out.
Through her husband’s medical research firm, which has devised genetic testing of fetuses, the pregnant Suzanne Gold-Stein (Jennifer Pearce) has discovered that her baby boy has the genetic markers of homosexuality.
The question of whether to keep the baby is, in fact, illuminated by the family’s firsthand experience: Suzanne’s brother David (Tim Woods) is gay, a factor that has, despite their denials, always affected his bond with her and with their parents.
The play is told from the opera-loving David’s point of view, its title a pun drawn from “The Twilight of the Gods,” the fourth opera in Wagner’s “Ring” Cycle. He frames the play’s focal issue when he asks, “What difference does being gay make?” As the story progresses, its ethical complications are magnified, even as Tolins takes time out to assail the materialism of the 1980s.
Complicating the ethical dilemma posed by Tolins is the way it splits the family. For David, who is, ironically, pro-choice, aborting the baby is tantamount to killing him. As much as she dotes on David, mom Phyllis (Karen Harris) has to admit that “it hurts to see your child become something different.”
Seeing genetic testing as a boon to mankind, Suzanne’s husband Rob (Eric James) insists that he and Suzanne “don’t need David to tell us how to live our lives,” while patriarch Walter Gold (Rick Kopps) maintains that “it’s Rob and Suzanne’s decision.”
See What will parents do to avoid having a gay son?
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US May Lift Entry Ban on HIV Patients
For more than two decades, anybody who is HIV positive has been prevented from entering the United States. But with President Barack Obama’s support, the ban will likely expire soon, with the Centers for Disease Control and Prevention (CDC) taking public comments until August 17. The department of Health and Human Services (HHS) will then make the final decision. “We’re trying to end the stigma and the discriminatory practice for a disease that doesn’t warrant exclusion for coming into this country,” said the director of the CDC’s division of global migration and quarantine, Dr. Martin Cetron. “We have to appreciate this is not a threat we face from abroad.” He acknowledged that “HIV is clearly a public health disease of significance,” but added that simply letting somebody with HIV into the country does not “immediately pose a risk to the public.”
The proposal could allow an average of about 5,000 HIV-infected people into the United States each year. And according to a CDC estimate published in the federal register, the lifetime medical costs of those admitted in just the first year would total almost $100 million. The United States is one of about 15 countries that prevent entry of HIV-positive patients, though it is possible to obtain a waiver under certain conditions. See US May Lift Entry Ban on HIV Patients
The New American
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Sotomayor avoids saying whether marriage should be issue for federal courts
Sen. Charles Grassley had a testy exchange Wednesday with Judge Sonia Sotomayor about the federal government’s authority over marriage law.
During the Iowa Republican’s second turn at questioning the Supreme Court nominee, Grassley referred to a 1972 Supreme Court decision, Baker v. Nelson, in which the justices declined to consider a gay-marriage case. He asked whether she thought federal courts lacked authority to hear civil-rights cases involving marriage.
Sotomayor said the issue is pending in several courts, before Grassley cut her off.
“I thought I was asking a very simple question,” he said.
He ticked off a list of cases Sotomayor had referenced as precedent during her testimony on Tuesday. “You said these are precedents,” Grassley continued, raising his voice. “Now, are you saying to me that Baker v. Nelson is not a precedent?”
“It’s not that I’m attempting not to answer your question, Senator Grassley,” she said.
Grassley interrupted again, “Why are you hedging on this?”
Finally, Sotomayor said it had been since law school that she had reviewed the case, prompting Grassley to move on to another topic.
See Sotomayor avoids saying whether marriage should be issue for federal courts
The Des Moines Register
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