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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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
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Gay Olympic Medal Winning Boxer Dies Outcome Buffalo
Toronto— Mark Leduc a gay Canadien who had won a Olympic silver medal in boxing has died.
Leduc, 47 was a former light welterweight boxer who was the unlikely silver medalist at the 1992 Barcelona. Leduc gained further notoriety when he came out as a gay man in 1994 in the TV documentary For the Love of the Game. Leduc remains one of the few boxers ever to do so. In 1999 Leduc served as a grand marshal of Toronto’s glbt pride parade.
The Toronto Star reports that Leduc died at St. Michael’s Hospital Wednesday night after he was found unconscious in a local hotel sauna early Sunday morning. Doctors believe Leduc suffered a heat stroke that damaged his internal organs.
The Toronto native turned pro shortly after the 1992 Olympics and retired after winning the Canadian super lightweight championship in1993.
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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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SCLC SPLIT OVER GAY MARRIAGE: Los Angeles office at odds with national officials.
*Civil Rights Movement icon Dr. Martin Luther King, Jr. led a group of Black activists who founded the Southern Christian Leadership Conference (SCLC) in 1959.
Even after King’s assassination in 1968, the SCLC remained one of the nation’s leading civil rights organizations. But now the group’s cohesion is under threat. The issue which could potentially split the organization is same-sex marriage.
The Atlanta, Georgia-based leadership of the group has threatened to suspend or remove Rev. Eric P. Lee as head of the Los Angeles SCLC chapter because of his outspoken support for homosexual marriage.
But Lee and supporters in the L.A. chapter are fighting back essentially arguing that the national board does not have the authority to remove him. Lee is also thought to be seeking support from other SCLC chapters around the country.
Officially the national board says it is neutral on the gay marriage issue but in reality, the group dominated by Black Southern ministers is strongly opposed to same-sex marriage. Their view appears to be backed by a large majority of African Americans. An Edison/Mitofsky exit poll found that 70 percent of Black voters supported California’s Proposition 8 last fall. The proposition banned gay-marriage in the state.
A similar national online survey conducted recently by Taylor Media Services found 72 percent of Blacks opposing same-sex marriage which was supported by a slim majority of whites. Hispanics were evenly split on the issue.
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Military Gay Discharge Moratorium Bill A Non-Starter
New York Senator Kirsten Gillibrand has decided not to pursue a senate amendment that would pause military discharges based on sexual orientation, gay weekly the Washington Blade reported. Gillibrand, the freshman senator appointed by Governor David Paterson after President Obama tapped Hillary Clinton to head the State Department, signaled last week she would introduce the reform as an amendment to a Defense Department reauthorization bill. The amendment would place an 18-month moratorium on the military gay ban, also known as “don’t ask, don’t tell,” the law that prescribes discharge for gay and lesbian service members who do not remain celibate or closeted.
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Local org makes the case for the Gay Games to come to Boston s
Grassroots organization Boston 2014 will be hosting a kick-off rally celebrating the city’s bid to host the 2014 Gay Games. The rally will take place on August 6 from 7 to 8:30 p.m. at The Estate nightclub, and it will give Bostonians a chance to meet with representatives from the Federation of Gay Games and make the case for Beantown as the Games’ 2014 host city.
Marc Davino, chair of Boston 2014’s sports committee, remains upbeat and positive about Boston’s chances of successfully completing the bid, touting “the backing of civic leaders,” including Gov. Deval Patrick, Lt. Gov. Tim Murray, Mayor Thomas Menino, and at-large City Councilor John Connolly. Menino will be meeting with Gay Games representatives during their upcoming site visit. Boston 2014 hopes the city’s strong commitment to Gay Games’ core values – participation, inclusion, and personal best – won’t hurt their chances either, organizers say.
“Our bid to bring the Gay Games 2014 to Boston shows that our wonderful city is not only a great venue for large sporting events, but that its diversity and culture make it an exceptional choice,” Mayor Menino said in a statement to Bay Windows. “Boston has always been at the forefront of gay rights and it would be the perfect city for the Gay Games, I am truly excited by this possibility.”
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Gay director denies telling gay actors not to come out
Openly gay director Todd Holland recently explained remarks he made during a panel discussion at the California Outfest film festival. Holland has been accused of telling gay actors to stay in the closet during the panel discussion, an accusation he denies.
“[F]or the past week, my response has been twisted and shoved back into my mouth over and over — so that I appear to be a gay director telling all actors to ’stay in the closet,’” said Holland in a piece for The Wrap. “There are only a few things I allow to be shoved in my mouth — my mangled words are not one of them.”
La Weekly reported that during the Outfest panel, titled “Taking It to the Streets: LGBT Directors Get Political,” Holland “told a small audience that he advises young, gay male actors to ’stay in the closet.’” Holland, a past director on the The Larry Sanders Show, claims he was “just being realistic.”
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