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.
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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In RI, some wary as tide of gay marriage rises
PROVIDENCE – From a cramped office in the middle of the smallest state in the nation, Christopher Plante is determined to prove that Rhode Island has not been cornered by the advance of same-sex marriage across the rest of New England.
“When I look at a real map of the United States, we’re actually not alone here,” said Plante, executive director of the Rhode Island chapter of the National Organization for Marriage, which opposes same-sex unions. “This is not the United States of New England.”
But supporters and even some opponents expect that Rhode Island will legalize same-sex marriage, although they say that legalization is two or three years away.
Massachusetts and Connecticut legalized same-sex marriage as a result of judicial decisions in 2003 and 2008, while Vermont, Maine, and New Hampshire followed this spring by legislative action.
The slower pace in Rhode Island, where the state Senate voted last week to allow same-sex partners to make funeral arrangements, has frustrated some local activists, many of whom rallied outside the State House in Providence last weekend to call for immediate equality.
But others say that legalization by 2012, a goal advocates set last year for securing same-sex marriage in all New England states, would put Rhode Island at the front of the pack nationally. In the rest of the country, only Iowa allows same-sex couples to marry.
“They still have a chance to be part of the vanguard,” said attorney Karen L. Loewy, the Rhode Island point person for GLAD, which won the lawsuits in Massachusetts and Connecticut that legalized same-sex marriage in those states. “Rhode Island is well on its way.”
See In RI, some wary as tide of gay marriage rises
Boston Globe
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Gay rights advocates rip suit to undo Prop. 8
Gay rights advocates Wednesday blasted two veteran attorneys for filing a federal lawsuit seeking to overturn Proposition 8, California’s voter-approved same-sex marriage ban, saying the move is premature and could be disastrous for the marriage movement.
While they knew of the objections, attorneys Theodore B. Olson and David Boies – who opposed each other during the 2000 Bush v. Gore presidential election case – filed the suit Friday in San Francisco on behalf of two same-sex couples who wanted to be married but were denied because of Prop. 8.
The suit claims the voter-approved measure, which the California Supreme Court affirmed Tuesday, denies same-sex couples the basic liberties and equal protection under the law guaranteed by the 14th Amendment. It asks for a preliminary injunction against Prop. 8 until the case is decided.
Olson said he filed the case not only on behalf of his clients, who include Berkeley residents Kris Perry and Sandy Stier, but on behalf of gay couples elsewhere who want to get married but can’t.
“We can’t tell them to wait, what, five years” for their state to approve same-sex marriage, he said, but acknowledged that it could take two years for his case to reach the U.S. Supreme Court.
While Olson shares the same end goal as same-sex marriage advocates, he doesn’t share their political strategy – to win states individually, with ballot initiatives or laws approved by state legislatures. Several same-sex marriage advocates intend to put the issue to voters in November 2010.
Olson thinks both strategies can work simultaneously. But many gay legal advocates are urging same-sex couples to avoid filing federal lawsuits because federal courts have not been as friendly to gay rights issues See * Gay rights advocates rip suit to undo Prop. 8 San Francisco Chronicle Tags = gay men gay news lesbian news transgender bisexual
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LGBT Organizations Point Out that Lawsuits Could Set Back Progress on Marriage for Same-Sex Couples
NEW YORK – In response to the California Supreme Court decision allowing Prop 8 to stand, four LGBT legal organizations and five other leading national LGBT groups are reminding the LGBT community that ill-timed lawsuits could set the fight for marriage back. The groups released a new publication, “Why the ballot box and not the courts should be the next step on marriage in California.” This publication discourages people from bringing premature lawsuits based on the federal Constitution because, without more groundwork, the U.S. Supreme Court likely is not yet ready to rule that same-sex couples cannot be barred from marriage. The groups also revised “Make Change, Not Lawsuits,” which was released after the California Supreme Court decision ending the ban on marriage for same-sex couples in California. This publication encourages couples who have legally married to ask friends, neighbors and institutions to honor their marriages, but discourages people from bringing lawsuits.
“Why the ballot box and not the courts should be the next step on marriage in California” is available at http://www.aclu.org/lgbt/relationships/39672res20090527.html “Make Change, Not Lawsuits” is available at http://www.aclu.org/lgbt/relationships/35584res20090527.html.
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NH Senate Works to Add Amendment to Gay Marriage Bill
The New Hampshire Senate will hold another hearing today to try and tackle a crucial amendment to the same-sex marriage bill. It’s one Governor John Lynch says must be adopted in order for him to sign it.
Currently the bill allows churches to decide whether they will conduct religious marriages for gay couples.
Last week, Gov. Lynch said he won’t sign the bill without clearer language to better protect churches and their employees against lawsuits if their beliefs prevent them from marrying gay couples.
That new language will be added to an unrelated bill which will come to a vote in the Senate and House on Wednesday.
See
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ACLU demands schools allow access to gay Websites In Tennessee
Students and parents are demanding Metro Nashville’s public schools stop blocking access to Web sites about lesbian, gay, bisexual and transgender issues. They complained to the American Civil Liberties Union, which on Wednesday gave Metro and Knox County schools an April 29 deadline to announce plans to open access to the non-sexual sites. A letter to the districts threatened lawsuits if they don’t comply.
Metro parents previously complained to the school district about the lack of support for gay and lesbian students, the teasing and the fatal results.
Clare Sullivan, a parent of a lesbian daughter who attended Metro schools, cited recent news reports of students who committed suicide after constant harassment for being gay.
“You have students struggling with these issues,” she said. “If you cut off avenues for discussion, and it’s taboo in schools, where else can they go?”
Sullivan is a member of Parents, Families and Friends of Lesbians and Gays, one of the groups whose Web site Metro blocks. Others include the Gay Lesbian Straight Education Network and the Gay and Lesbian Alliance Against Defamation.
Metro uses an outside company that filters Internet access, district spokeswoman Noelle Mashburn said. See ACLU demands schools allow access to gay Websites The Tennessean * Tags = gay men gay news lesbian news transgender bisexual
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Hollywood Bonkers Over Lipstick Lesbians and Bisexual Hotties
“The fantasy has become a reality. Between ads, movies, music, books and TV shows, society just can’t get enough bisexuality. As witnessed in the famous Madonna-Britney-Christina kiss and MTV star Tila Tequila’s adventures, society is fascinated by those who “bat for both teams.”
Bisexual pursuits have become so seemingly commonplace that one would think the world has gone “bi.” But the research on bisexual numbers paints a very different picture:
By all indications, true bisexual orientation is rare.” Yvonne K. Fulbright/ Fox News “Sexpert”
Fullbright is spot on, one sure-fire way to spice up a show and spike the ratings is to have one of the female leads fall in love with a beautiful woman. We can’t get enough of Lindsay Lohan and Samantha Ronson, and we still don’t get bored when a TV station replays the Madonna/Britney Spears kiss for the millionth time.
But the Fox News Sexpert fail to mention, for politically-correct reasons, that Americans are only fascinated by bisexual women. Ninety nine percent of straight men, and most women are fascinated by lipstick lesbians, but 99.99 of straight men and 99.99 percent of women are repulsed by the onscreen depiction of men making love to men.
See Hollywood Bonkers Over Lipstick Lesbians and Bisexual Hotties
NewsBlaze
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Hollywood Bonkers Over Lipstick Lesbians and Bisexual Hotties
“The fantasy has become a reality. Between ads, movies, music, books and TV shows, society just can’t get enough bisexuality. As witnessed in the famous Madonna-Britney-Christina kiss and MTV star Tila Tequila’s adventures, society is fascinated by those who “bat for both teams.”
Bisexual pursuits have become so seemingly commonplace that one would think the world has gone “bi.” But the research on bisexual numbers paints a very different picture:
By all indications, true bisexual orientation is rare.” Yvonne K. Fulbright/ Fox News “Sexpert”
Fullbright is spot on, one sure-fire way to spice up a show and spike the ratings is to have one of the female leads fall in love with a beautiful woman. We can’t get enough of Lindsay Lohan and Samantha Ronson, and we still don’t get bored when a TV station replays the Madonna/Britney Spears kiss for the millionth time.
But the Fox News Sexpert fail to mention, for politically-correct reasons, that Americans are only fascinated by bisexual women. Ninety nine percent of straight men, and most women are fascinated by lipstick lesbians, but 99.99 of straight men and 99.99 percent of women are repulsed by the onscreen depiction of men making love to men.
See Hollywood Bonkers Over Lipstick Lesbians and Bisexual Hotties
NewsBlaze
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Lawsuits accuse Chicago cop of gay harassment, false arrests
(Chicago, Illinois) A Chicago police officer is facing seven civil lawsuits accusing him of making false drunk driving arrests, using excessive force and harassing gays and lesbians.
Four of the suits against officer Richard Fiorito were filed this week, The Chicago Tribune reported. The three others were filed in February.
Attorney Jon …
