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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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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Militias target some Iraqis for being gay
“I’m not a terrorist,” he tells the Iraqi police who surround him. “I want you to know I am different. But I am not a terrorist.”
To some fundamentalist Iraqi Muslims, Ahmed Sadoun Saleh was worse than a terrorist.
He was gay. He wore his hair long and took female hormones to grow breasts. Amused by his appearance, Iraqi police officers stopped him in December at a checkpoint in a southern Baghdad neighborhood dominated by radical Shiite militias. They groped Saleh and ridiculed him.
The assault was captured on video and circulated on cellphones throughout Baghdad, says Ali Hili, founder of London-based Iraqi LGBT, a group dedicated to protecting Iraq’s gays and lesbians. Shortly after the video was made public, Hili says Saleh contacted him, fearing for his life, and asked for his help to flee Iraq.
“Unfortunately, it was too late,” Hili says. Saleh turned up dead two months later, he says.
At least 82 gay men have been killed in Iraq since December, according to Iraqi LGBT. The violence has raised questions about the Iraqi government’s ability to protect a diverse range of vulnerable minority groups that also includes Christians and Kurds, especially following the withdrawal of U.S. combat troops from Iraqi cities last month.
Mithal al-Alusi, a secular, liberal Sunni legislator, is among those who blame the killings on armed militant groups such as al-Qaeda and the Mahdi Army militia.
See Militias target some Iraqis for being gay
USA Today
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‘Hate crime’ at Danish gay games
A Dane has been charged with committing a hate crime for allegedly throwing fireworks at athletes during a gay sporting event in Copenhagen.
He is accused of throwing fireworks into the Oesterbro stadium where the World Outgames running competitions were being held.
One US athlete suffered a light injury to his hand.
The attack marks the second suspected hate crime at the Outgames after three men were assaulted in the street.
In the stadium incident, the alleged perpetrator was apprehended by runners from the Sparta Athletes club as he attempted to escape.
See ‘Hate crime’ at Danish gay games
BBC New
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‘Two-Track’ Church Suggested by Archbishop of Canterbury
PARIS — The Most Rev. Rowan Williams, the archbishop of Canterbury, said profound differences among the world’s 77 million Anglicans over gay clergy and same-sex unions could divide their church into a “two-track model” yielding “two styles of being Anglican.”
The formula could avert a formal breach between liberals and conservatives but bring new strains in the relationship between the global Anglican Communion and American Episcopalians who resolved this month to open the door to ordaining openly gay bishops and to start the process of developing rites for same-sex marriages.
Archbishop Williams insisted that the issue should not be debated “in apocalyptic terms of schism and excommunication but plainly as what they are — two styles of being Anglican.”
In a lengthy message published Monday on his Web site, the archbishop offered a detailed and nuanced response to events at the Episcopal convention in Anaheim, Calif., this month when gay-rights advocates in the United States chalked up major victories over conservatives on sexual issues. The Episcopal Church is the official branch of the Anglican Communion in the United States.
The developments were seen by liberals and conservatives as likely turning points in the history of the divided Episcopal Church, reflecting the profound rifts over sexual issues within Anglicanism — the world’s third largest network of Christian churches after the Roman Catholic and Orthodox Churches. The differences have crystallized around the Episcopal Church’s consent in 2003 to the consecration of the church’s first openly gay bishop, V. Gene Robinson of New Hampshire.
The Episcopalians had agreed to a moratorium on the election of gay bishops, but it was lifted at the convention in Anaheim.
The archbishop of Canterbury is the spiritual head of the Anglican Communion, which is composed of 38 provinces worldwide. The Episcopal Church claims about 2.3 million members.
In his message, Archbishop Williams repeated his view that “a blessing for a same-sex union cannot have the authority” of the full Anglican Communion, any more than a blessing for a heterosexual couple living outside marriage would have.
That, in turn, means that as long as the broader church “as a whole does not bless same-sex unions, a person living in such a union cannot without serious incongruity have a representative function in a Church whose public teaching is at odds with their lifestyle.”
The issues have confronted the archbishop with deep divisions not simply between liberals and conservatives in the United States but also across the broader church with its many followers in Africa, Britain and elsewhere. Four conservative dioceses in the United States and many individual Episcopal churches have broken away from the national denomination to forge alliances with conservative Anglican groups such as the Anglican Church of Nigeria.
Archbishop Williams said: “There is at least the possibility of a twofold ecclesial reality in view in the middle distance: that is, a ‘covenanted’ Anglican global body, fully sharing certain aspects of a vision of how the Church should be and behave, able to take part as a body in ecumenical and interfaith dialogue; and, related to this body, but in less formal ways with fewer formal expectations, there may be associated local churches in various kinds of mutual partnership and solidarity with one another and with ‘covenanted’ provinces.”
The archbishop has promoted the idea of covenant — described by some analysts as a kind of good-behavior guide for churches — to overcome the rift.
“This has been called a ‘two-tier’ model, or, more disparagingly, a first- and second-class structure,” the archbishop’s message said. “But perhaps we are faced with the possibility rather of a ‘two-track’ model, two ways of witnessing to the Anglican heritage, one of which had decided that local autonomy had to be the prevailing value and so had in good faith declined a covenantal structure.”
The message continued: “It helps to be clear about these possible futures, however much we think them less than ideal, and to speak about them not in apocalyptic terms of schism and excommunication but plainly as what they are — two styles of being Anglican, whose mutual relation will certainly need working out but which would not exclude cooperation in mission and service of the kind now shared in the Communion.”
See Anglican Sees ‘Two-Track’ Church @ New York Times
- Archbishop warns ordination of gay clergy could lead to two-tier … guardian.co.uk
- Anglican Head Warns Of Two-Tier Church After Gay Vote On Top Magazine Archbishop of Canterbury responds to General Convention actions on … Austin American-Statesman
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LGBT health survey shows trouble spots
BOSTON. The largest survey to date comparing the health of the lesbian, gay, bisexual and transgender community to heterosexuals and non-transgender residents showed sharp health disparities.
The statistics:
In a survey of nearly 1,600 Massachusetts residents:
- Almost 31 percent of transgender citizens reported considering suicide in the past year, compared to just 2 percent for heterosexuals and 4 percent for gay or lesbian.
- Nearly 35 percent of transgender citizens said they were threatened with physical violence during their lifetime by an intimate partner, almost three times the rate of non-transgender residents.
- Just 45 percent of bisexual women said they had never had a mammogram, below the 59 percent of heterosexuals and 58 percent of lesbians.
- Bisexuals reported the most days binge drinking, having four or five drinks in a sitting an average of nearly two times in the past 30 days. Bisexuals also reported smoking marijuana nearly twice as often as heterosexuals.
See LGBT health survey shows trouble spots
Metro.us
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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
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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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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
See Backers of Gay Marriage Rethink California Push
New York Times
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