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.
Behind the news: Washington Blade was almost saved
A publisher was in negotiations to buy and run the Washington Blade before it was shut down on Monday.
From a press release:
(Washington DC) In response to media inquiries and an apparent information blackout by the U.S. Small Business Administration (SBA), Nicholas F. Benton, owner of the Falls Church News-Press, a …
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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Gay professor Simon Karlinsky dies
Simon Karlinsky, an openly gay distinguished professor in the Slavic Languages and Literatures Department at the University of California, Berkeley, and an expert on the history of homosexuality in Russia, died July 5 due to congestive heart failure. He was 84.
Mr. Karlinsky’s death was announced by his husband, Peter Carleton. The couple lived in Kensignton.
For more than 30 years Mr. Karlinsky taught at UC Berkeley. He was an author and editor of books on Gogol, Nabokov and Chekov, and an internationally known expert on the history of homosexuality in Russia.
He was born on September 22, 1924 in the city of Harbin, a Russian cultural outpost in Manchuria (now China).
See Gay professor Simon Karlinsky dies
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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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Congressional Race in California Draws a High-Profile Cast
WALNUT CREEK, Calif. — With competitive races in Congress a rarity in California, the unexpected availability of a seat here has set off a sudden and furious chase, with at least a dozen candidates and a mélange of political styles and personal storylines.
California’s 10th Congressional District, a sprawling inkblot made up of a collection of suburbs east of San Francisco, has been represented since 1997 by Ellen O. Tauscher, a Democrat who resigned after being confirmed on June 25 to a top post in the State Department.
The field to succeed her includes the lieutenant governor, two state lawmakers, a decorated Iraqi war veteran who is openly gay and a former newspaper reporter. And that does not even include the Republican candidates in this Democratic-leaning district.
The crush of hopefuls, said Henry Brady, a professor and dean of the public policy school at University of California, Berkeley, might stem in part from the diversity of the district, which extends from the liberal Bay Area to more conservative territory inland.
“These seats don’t come available very much, and the reason is very simple: geography,” Dr. Brady said. “The Democrats are primarily on the coast, and the Republicans are in the Central Valley and the mountains, so it’s very hard to build a competitive district. But this has the potential to be one.”
The lieutenant governor, John Garamendi, is considered the early favorite to replace Ms. Tauscher. Mr. Garamendi, a Democrat who had considered running for governor next year, said he opted instead for Congress in large part because of the abbreviated campaign. A primary, followed by a special election, to complete Ms. Tauscher’s term must be held within 126 days of the governor setting the date. Gov. Arnold Schwarzenegger issued a proclamation Friday declaring Nov. 3 the date for the special election.
“I thought, How am I going to spend two valuable years of my life?” said Mr. Garamendi, 64, who previously served as the deputy secretary of interior in the Clinton administration as well as the California’s first elected insurance commissioner. “Am I going spend two years dialing for dollars, or am I going to spend four months out ringing doorbells and campaigning person to person and the other 20 months working on issues?”
Mr. Garamendi’s principal challengers among the Democrats, some polls show, are State Senator Mark James DeSaulnier and Assemblywoman Joan Buchanan. Both were elected to their current posts last fall.
Mr. DeSaulnier, 57, is a former mayor, city councilman and assemblyman, who says his career comes in spite a devastating personal experience with politics: a scandal involving his father, Judge Edward J. DeSaulnier Jr., who was removed from the bench of the Massachusetts Superior Court and disbarred in 1972 after being accused of rigging a sentence for the Mafia. The older Mr. DeSaulnier was never charged with a crime but was disgraced nonetheless and committed suicide in 1989.
“I’ve been very affected by my father’s journey,” said Mr. DeSaulnier, who worked as a restaurateur before running for office. “And I’ve loved my public life.”
The rest of the Democratic field is not as well known, though one candidate has attracted some national attention: Anthony Woods, a 28-year-old graduate of the United States Military Academy at West Point and a veteran of the Iraq war who was awarded the Bronze Star for two tours of duty. Shortly after his return from combat, while at Harvard working toward his master’s degree, Captain Woods told military superiors that he is gay, resulting in an honorable discharge.
While considered a long shot for the Congressional seat, Mr. Woods would be the first openly gay black man in Congress, though he has been careful on the campaign trail to trumpet more than his sexuality.
“The first thing I talk to voters about is their priorities, universal health care and economic security,” he said. “I’m not hiding who I am, but they’re just as interested in talking about the issues as I am.”
See Congressional Race in California Draws a High-Profile Cast
New York Times
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Australian Gay parents welcomed. Just not for adoption
Katherine Eastaughffe and Una Harkin are lesbians.
They’re also mothers, to six-month-old Daniel, whom Katherine gave birth to after undergoing fertility treatment.
The Queensland Government has no problem with lesbians using IVF to have children.
Neither do they have a problem with taking on Katherine and Una as registered foster carers.
But they draw the line at gay adoption, meaning Una cannot be legally recognised as one of Daniel’s parents.
The Bligh Government’s refusal to consider same sex adoption is being used as part of a renewed push for federal laws preventing discrimination against gays and lesbians.
A Galaxy poll released today reveals 85% of Australians support the case for a national law on the issue.
Ms Eastaughffe told brisbanetimes.com.au the State Government’s Adoption Bill 2009, reintroduced to Parliament in April, was clearly discriminatory.
“It was a joint decision to have Daniel. He is very much both of ours,” Ms Eastaughffe said.
“If Una was a man, there’d be no issue either way. Either by having her name on the birth certificate or by being able to adopt him as a step-parent.
“It doesn’t make sense to me. A man might not be the biological father but he is still treated as the parent, but not if it’s a woman who’s the “non-biological parent”. That just seems outright discrimination.”
See Gay parents welcomed. Just not for adoption
Brisbane Times
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Gay parents along with kids celebrate in annual parade
SAN FRANCISCO — Hundreds of thousands of people turned out for the city’s annual Gay Pride Parade, some in provocative costumes and outfits, but an increasing number of them pushing strollers. “I feel like I’ve seen twice as many children as I saw last year,” said Joseph Bowik, who is a father to two children with his husband, David Bowik. The Pride Family Garden, a small park cordoned off near City Hall to give parents a respite and an area for their children to play, saw more than 600 families last year, a record that appeared set to be broken during this year’s parade, organizer Meredith Fenton said. “Probably the biggest thing we’re hearing about this year from kids is the word ‘backlash,’”‰” said Fenton, who is the program director for Children of Lesbians and Gays Everywhere (COLAGE), which joined the park effort. “With Prop. 8 passing and the Defense of Marriage Act, there’s so much talk about gay rights, but what people keep asking is, ‘How will the kids of gay parents turn out?’ Those people are all asking about us.” San Francisco and Alameda counties are home to the second- and third-most same-sex couples who are parents in California, after Los Angeles, Fenton said. Diana Castillo, 18, moved to Oakland this summer for an internship at Children of Lesbians and Gays Everywhere. Raised by her birth mother and her mother’s partner, she said growing up with two moms made her grateful.
See:
- Gay parents along with kids celebrate in annual parade San Jose Mercury News – –
- Video: Gay pride on the streets
- Remembering Stonewall: 40 Years Later Gay Wired Gay Pride Parade Marks 40 Years After NYC Uprising WDIV
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Kathy Griffin’s Confession of Wild Lesbian Sex with Padma Lakshmi
From getting in bed with avowed Lesbian Lily Tomlin to confessing to a Lesbian affair with Padma Lakshmi, Kathy Griffin is surely having a gay week!
On Thursday night, comedian Kathy Griffin appeared on the Jimmy Kimmel Show to promote the new Season of her Emmy winning Bravo reality series My Life on D List and publicly announced she had sex with Top Chef‘s Padma Lakshmi. The confession came while Griffin was promoting the upcoming My Life on the D List guest appearance of novelist Salman Rushdie, Lakshmi’s former husband, and revealed that the two actually shared a lot more in common than authoring a book.
“I’ve had a night of wild sex with Padma,” Griffin told Kimmel, “It’s a connection …it’s a true story.”
“I’m not saying that at all to get publicity for My Life on the D List,” declared the comedian. See
Kathy Griffin’s Confession of Wild Lesbian Sex with Padma Lakshmi
SheWired
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Census study of gay married couples finds similarities to husband-and-wife couples
Marriage — whether you are gay or straight — may be the great common denominator among American households, according to a new government study that offers a first-ever look at the nation’s same-sex couples who say they are spouses. Married men and women average about 50 years old, and about four in 10 have kids living at home. The average couple pulls down a little over $90,000 a year and four in five own their home. That demographic portrait doesn’t just fit the nation’s 56 million husband-and-wife couples. It also closely fits the roughly 340,000 households where two men call themselves husbands, or two women consider themselves wives. In the midst of the nation’s widening debate over whether same-sex couples should be allowed to marry, the U.S. Census Bureau has quietly completed a statistical portrait of U.S. lesbian and gay couples who describe themselves as married. With same-sex marriage likely to be legal in as many as six states by Jan. 1, the study could add another layer to the debate. Many of those gay and lesbian couples live in states where they cannot legally marry, and may be checking the spouse box on their census form to reflect a domestic partnership, a civil union or partnership where two lives have been merged into one household.
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