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.

Four Okla. women continue fight against gay marriage ban

Four Oklahoma women have filed a new complaint challenging federal and state laws banning gay marriage, reports the Journal Record.

One of the couples, Susan Barton and Gay Phillips, were married in California in Nov., British Columbia in May 2005 and a civil union in Vermont in August 2001. The second …

Delaware is 21st state to pass lesbian-gay bias law

Dover, Delaware–State lawmakers sent a sexual orientation nondiscrimination bill to the governor on June 25, passing it through both houses of the legislature in only an hour.

The House passed the measure at 8:30 pm, shortly after the Senate passed an identical bill. In previous legislative sessions, the Senate killed the bill.

Rep. Pete Schwartzkopf, one of the bill’s champions, said that Gov. Jack Markell had expressed support for the measure

When Markell signs it, Delaware will become the 21st state with such a law. But, unlike seven similar state laws passed since 2002, Delaware’s does not include gender identity.

See Delaware is 21st state to pass lesbian-gay bias law

Gay People Chronicle

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Gay Divorce Still Legal in California

Gay and lesbian couples who took advantage of California’s brief fling with gay marriage last year to tie the knot, but now can’t stand the sight of one another, will be relieved to hear that gay divorce remains an option.
Frederick Hertz, a lawyer in Oakland, Calif., who specializes in same-sex family law, told The Lede that since California’s Supreme Court ruled on Tuesday that same-sex marriages that took place in 2008, before voters approved a ban in November, will remain “both valid and recognized,” that means “all the rules of marriage apply, including divorce.” That said, the state’s new law explicitly outlawing same-sex-marriage does create something of a gray area for couples who live in California, but were married in another state, or nation, and now want to get a divorce. As Mr. Hertz explains, the problem for unhappily married same-sex couples living in a state that bans same-sex marriage, is that “getting a divorce requires a recognition of the marriage.”
In an article explaining how the legal patchwork of state laws makes it nearly impossible for some same-sex couples to get divorced, the Los Angeles Times reported that a lesbian couple from Rhode Island who got married in Massachusetts were later denied a divorce in their home state, since the courts there can not recognize their marriage. See Gay Divorce Still Legal in California
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Lambda Legal Files Federal Lawsuit Against Assisted Living Facility Following Eviction of HIV-Positive Retired Minister

‘They shunned and rejected him, making him feel like a complete outcast.’

(Little Rock, Ark.) — Lambda Legal announced today that it has filed suit in U.S. District Court for the Eastern District of Arkansas against Fox Ridge of North Little Rock, an assisted living facility.

The lawsuit was filed on behalf of 75-year-old Reverend Dr. Robert Franke, a retired university provost and Unitarian-Universalist minister, and his daughter, Sara Franke Bowling.

Dr. Franke, who relocated to Little Rock to be closer to his daughter, moved in to Fox Ridge after fulfilling all of its residency requirements — including submission of medical evaluation forms from a local physician. The next day, however — after realizing Dr. Franke is HIV-positive —Fox Ridge officials abruptly ejected Dr. Franke from the facility. A Fox Ridge staffer told Bowling her father’s personal belongings could remain, but that the “body” had to be out by the end of the day.

“I was stunned that my dad was thrown out of his new home,” said Bowling. “The people at Fox Ridge were supposed to make sure that he was comfortable and cared for, and instead they shunned and rejected him, making him feel like a complete outcast.”

Dr. Franke requires no special medical attention beyond daily medication and regular check-ups with a physician, and Fox Ridge is licensed by the state to provide Dr. Franke with the kind of care he and his daughter were seeking for him.

“Federal and state laws exist to protect people from just this sort of unjust treatment,” said Scott Schoettes, HIV Project staff attorney for Lambda Legal. “Unfortunately, this is something we are seeing far too frequently, all across the country. Those tasked with caring for our elderly loved ones need to know that it is illegal to discriminate against someone with HIV based on outdated and misguided beliefs about its transmission.”

Franke and Bowling are seeking damages under the Fair Housing Act, the Arkansas Civil Rights Act and the Arkansas Fair Housing Act, as well as an injunction, under those laws and the Americans with Disabilities Act, preventing Fox Ridge from continuing to engage in this kind of conduct.

“This is about doing the right thing,” said Franke. “I want to make sure it doesn’t happen to anyone else — because no one should ever be made to feel the way I did.”

Scott Schoettes, HIV Project Staff Attorney, and Kenneth Upton, Supervising Senior Staff Attorney, are handling the case for Lambda Legal. They are joined by co-counsel Gary L. Sullivan of the Tripcony Law Firm in Little Rock, Arkansas. The case is Robert G. Franke and Sara Franke Bowling v. Parkstone Living Center, Inc., dba Fox Ridge at North Little Rock.

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“It’s not easy being gay,” says director of the Ohio Department of Insurance

“It’s not easy being gay,” said Mary Jo Hudson, director of the Ohio Department of Insurance. She wasn’t referring to political opposition and other obstacles, but the plight of same-sex couples who are trying to get and keep health insurance.

“You’ve got to go through a lot of hoops,” said Ms. Hudson, who is openly gay and has lived with her partner for eight years.

Same-sex couples have been making headlines; Maine followed the lead of Iowa and Vermont this week in legalizing same-sex marriage, and several other state legislatures are now considering it. But Ms. Hudson says that fairer and more comprehensive health care coverage for partners — whether they are legally married or not — is not necessarily part of the package.

“For the vast majority of gay couples,” she said, “getting health insurance for a domestic partner is still a challenge.”

Currently about one-third of companies with more than 500 employees offer domestic partner benefits. That’s up from about 12 percent in 2000, according to a study from Mercer, an employee benefits consulting firm. But the percentage drops off sharply when smaller employers are counted, Ms. Hudson said.

And there is no provision for domestic partner benefits for federal employees, although there are some legislative efforts to change that. Some states and municipalities offer their employees domestic partner coverage, depending on the state laws.

Even if the relationship is formalized with the state in a marriage or union, that does not always obligate the employer to cover a same-sex spouse. For one thing, self-insured employers are not regulated by the states. See Patient Money For Gay Couples, Obstacles to Health Insurance

New York Times

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Conn. gov. signs bill updating marriage laws

(Hartford, Conn.) A decade-long battle for same-sex marriage in Connecticut has ended with the governor’s signature on a bill updating the state’s laws.

Gov. M. Jodi Rell signed the legislation Thursday, one day after the state House and Senate both approved it.

The bill removes gender references from state marriage laws. It …

Vote caps decade-long gay marriage fight in Conn.

(Hartford, Conn.) A decade-long battle for marriage equality in Connecticut ended late Wednesday when the General Assembly voted to update the state’s marriage laws to conform with a landmark court ruling allowing gay and lesbian couples to tie the knot.

“It feels so good. It really does feel like the book …