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.
Ending prisoner rape in Michigan
LINDA MCFARLANE writes:
The Michigan Department of Corrections (DOC) last week settled a class action lawsuit brought by over 500 female prisoners who were sexually abused in the state’s prisons. With the $100-million settlement agreement, hopefully the DOC will also begin to take the proactive steps needed to prevent and address the sexual violence that continues to plague its facilities.
This decision came after more than ten years of litigation, during which the courts repeatedly ruled against the state.
Although the prevalence of sexual abuse in Michigan prisons is well documented, leading officials have insisted that this type of violence is not a serious problem. In 2008, DOC Director Patricia Caruso opposed national standards being developed to address sexual abuse behind bars, stating that they would require that a “disproportionate amount of resources be dedicated to an issue that affects less than 1% of the DOC prison population.”
This claim is in blatant defiance of the facts. A 2007 national survey by the Department of Justice’s Bureau of Justice Statistics, which surveyed inmates at three Michigan prisons, found that the proportion of prisoners experiencing sexual victimization in the past year alone ranged from 4.6% to 7.9%.
Rape and other forms of sexual violence cause long-term harm to survivors and their communities. Prisoner rape survivors suffer physical injury, contract HIV and other sexually transmitted diseases, and experience severe psychological trauma. The vast majority of inmates ultimately return home, bringing their experiences and medical and psychiatric conditions with them.
See Ending prisoner rape in Michigan
Detroit Free Press -
* Tags = gay men gay news lesbian news transgender bisexual
| Published by |
 |
Original source : http://gay_blog.blogspot.com/2009/07/ending-prison…
Whose Holocaust? Plan to Recognize Gay Victims at Memorial Sparks Row
A plan to memorialize gay male victims of Nazism amid a collection of memorial stones for Holocaust victims in a quiet half-acre patch of Brooklyn has provoked an outcry.
New York State Assembly Member Dov Hikind, a Brooklyn Democrat whose many Orthodox constituents include numerous Holocaust survivors, has decried the planned addition as a distortion of the Holocaust’s meaning with regard to Jews.
“It’s easy to say, let’s include everybody, let’s be universal, diversity is great,” he said. But he added, “It just isn’t fair. It diminishes and really dilutes what the Holocaust is.”
Hikind and the Holocaust Memorial Committee, steward of the tiny Holocaust Memorial Park in the Sheepshead Bay section of Brooklyn, are calling for the park’s memorial stones to be restricted to Jewish victims of Hitler. But the plan, approved by the city’s parks department, to commemorate non-Jewish victims of the Nazi regime there is proceeding thus far.
On June 9, representatives of the International Association of Lesbian and Gay Children of Holocaust Survivors, which proposed the addition, could be found combing the bayside memorial to measure unmarked stone pillars and determine if memorial text could be carved on them, association co-chair Rick Landman said.
The altercation raises a question that Jews have faced with increasing frequency: Whose Holocaust is it, anyway? Roma Gypsies, the disabled and gay men were among those also especially targeted by the Nazis. According to historians, though, only Jews and Roma were targeted for annihilation. Altogether, the Nazis are estimated to have murdered some 11 million from their coming to power in 1933 until their downfall in 1945.
Flanked by Emmons Avenue and Shore Boulevard, at the easternmost end of Sheepshead Bay, the memorial, built in 1997, consists of a tall eternal flame sculpture — engraved with a short statement on the Holocaust and the nations affected by the genocide — surrounded by two adjacent gardens of stone markers, each of which features either a paragraph or two of history or a list of victims’ names.
For $360 per engraved line, donors to the non-profit Holocaust Memorial Committee can pay to have a victim’s name printed on one of the stone markers. The registration form for this service, found on the committee’s Web site, asks donors to provide the victim’s name and a brief history of his or her Holocaust experience. The committee then meets to verify the authenticity of the proposed inscription, committee treasurer and past president Alfred Gollomp said.
Gollomp complained that in signing on to the IALGCHS proposal, Mayor Michael Bloomberg, City Council Speaker Christine Quinn and the city’s parks department were ignoring a memorandum that gives the Brooklyn-based group control over the park markers.
See Whose Holocaust? Plan to Recognize Gay Victims at Memorial Sparks Row
Forward
* Tags = gay men gay news lesbian news transgender bisexual
| Published by |
|
Original source : http://gay_blog.blogspot.com/2009/06/whose-holocau…
LGBT Domestic Violence Services Bill Passes State Assembly
“By passing this bill, we are expanding innovative and proven program models already being pioneered by LGBT centers and organizations across the state,” said Assemblymember John A. Pérez (D-Los Angeles), the author of the bill. “Now more people will have greater access to the services they need – in a safe, comfortable environment.”
Rates of domestic violence in same-sex relationships are equivalent to those in opposite-sex relationships. However, support for LGBT survivors continues to lag far behind those available to non-LGBT couples.
“We must do all in our power to ensure that LGBT survivors of domestic violence have access to culturally competent services and resources,” Geoff Kors, executive director of EQCA. “EQCA is extremely grateful to Assemblymember Pérez for his leadership on this important issue and thank the California Assembly for helping move us one step closer to making this goal a reality.”
The LGBT Domestic Violence Services Bill is designed to correct this inequity by expanding access for LGBT service providers to a state fund within the California Emergency Management Agency, which supports LGBT-specific domestic violence programs across the state. The fund, originally established as part of another EQCA-sponsored bill in 2006, is subsidized by a $23 fee on domestic partner registrations. The new bill also eliminates the requirement for providers to offer shelter – an impediment to many smaller LGBT organizations that inadvertently keeps several California communities from providing any services for LGBT survivors of domestic violence. The bill previously passed the Assembly Public Safety Committee by a vote of 5-2.
More information about EQCA’s other current legislation can be found at www.eqca.org/legislation.
| Published by |
|
Original source : http://gay_blog.blogspot.com/2009/05/lgbt-domestic…
Gay Activists Plan Their Own Tea Party At Boston Harbor
BOSTON, MA – On April 15th, thousands of same-sex couples across the United States will be reminded of their second-class status when they file their federal tax return form. Despite living in committed relationships, same-sex couples–even those married in Massachusetts, Connecticut, and California–must file as individuals, forgoing over 1,100 federal rights granted to heterosexual married couples.
This tax day, the LGBT community is demanding equal rights for equal taxation. Massachusetts citizens will be at the Long Wharf dock, near the site of the original Boston Tea Party, from 5:30pm to 7:00pm putting on a Boston Tea Party Re-enactment, rallying and passing out literature to protest the federal government’s tax policy toward same-sex couples. The intent is to inform the public of the discrimination that same-sex couples continue to face.
Rallies are being planned at local post offices across the country and these events have been sponsored by the Human Rights Campaign (HRC), the largest LGBT rights organization in the United States, Join The Impact, Join The Impact MA, and Marriage Equality USA.
“Married same-sex couples are blatantly discriminated against under federal tax law, among other areas, and we’re doing our part to shine a light on that injustice. A Boston Tea Party Re-enactment is a spirited way to do just that and it also adds some variety to your standard protest,” said Paul Sousa, co-chair of Join The Impact MA.
Among the most egregious policies is the federal government’s denial of social security benefits and inheritance rights to same-sex couples. LGBT individuals are blocked access to their partner’s social security benefits, often making retirement financially difficult, if not impossible. They are also denied access to the lump sum given to survivors which can make it hard to cover hospital and funeral expenses for their loved one.
The Boston Tea Party Re-enactment is being organized by Join the Impact MA, a grassroots organization that is working towards full LGBT equality on the state and national level. More information about the rallies and their locations can be found at the website http://www.jointheimpactMA.com/taxday/.
Gay Activists Plan Their Own Tea Party At Boston Harbor
| Published by |
|
Original source : http://gay_blog.blogspot.com/2009/04/gay-activists…
Gay Activists Plan Their Own Tea Party At Boston Harbor
BOSTON, MA – On April 15th, thousands of same-sex couples across the United States will be reminded of their second-class status when they file their federal tax return form. Despite living in committed relationships, same-sex couples–even those married in Massachusetts, Connecticut, and California–must file as individuals, forgoing over 1,100 federal rights granted to heterosexual married couples.
This tax day, the LGBT community is demanding equal rights for equal taxation. Massachusetts citizens will be at the Long Wharf dock, near the site of the original Boston Tea Party, from 5:30pm to 7:00pm putting on a Boston Tea Party Re-enactment, rallying and passing out literature to protest the federal government’s tax policy toward same-sex couples. The intent is to inform the public of the discrimination that same-sex couples continue to face.
Rallies are being planned at local post offices across the country and these events have been sponsored by the Human Rights Campaign (HRC), the largest LGBT rights organization in the United States, Join The Impact, Join The Impact MA, and Marriage Equality USA.
“Married same-sex couples are blatantly discriminated against under federal tax law, among other areas, and we’re doing our part to shine a light on that injustice. A Boston Tea Party Re-enactment is a spirited way to do just that and it also adds some variety to your standard protest,” said Paul Sousa, co-chair of Join The Impact MA.
Among the most egregious policies is the federal government’s denial of social security benefits and inheritance rights to same-sex couples. LGBT individuals are blocked access to their partner’s social security benefits, often making retirement financially difficult, if not impossible. They are also denied access to the lump sum given to survivors which can make it hard to cover hospital and funeral expenses for their loved one.
The Boston Tea Party Re-enactment is being organized by Join the Impact MA, a grassroots organization that is working towards full LGBT equality on the state and national level. More information about the rallies and their locations can be found at the website http://www.jointheimpactMA.com/taxday/.
Gay Activists Plan Their Own Tea Party At Boston Harbor
| Published by |
|
Original source : http://gay_blog.blogspot.com/2009/04/gay-activists…
So You’re Dead? That Won’t Stop the Debt Collector From Trying To RIp Off Your Survivors
Please pass this message along to any and all and post it wherever you can.
The New York Times just reported on a company that tries to collect money owned by dead people by contacting sruvivors.
That’s right: Your Mom dies and you get a call from a nice kindly person working for DCM Services <http://www.dcmservices.com> asking if you “want to settle the balance on a credit card or bank loan, or perhaps make that final utility bill or cellphone payment.” See So You’re Dead? That Won’t Stop the Debt Collector <http://www.nytimes.com/2009/03/04/business/04dead.html?_r=1&hp>
THe Tiems reprots: “or some relatives, paying is pragmatic. The law varies from state to state, but generally survivors are not required to pay a dead relative’s bills from their own assets. ” So you are not under any legal obligation to pay for a dead person’s personal debts.
But DCM Services tries to sweet talk you into paying them for the dead person’s bills. THe Tiems reports: “DCM Services, which began in 1999 as a law firm, recently acquired clients in banking, automobile finance, retailing, telecommunications and health care” but these upstanding firms don’t want people to know who tehy are.
Of all the underhanded, scum-sucking, detestable things I have seen American business do in the past six decades, this takes the cake.
Please spread the word: generall you are not under any legal obligation to pay for a dead person’s personal debts.
| Published by |
|
Original source : http://gay_blog.blogspot.com/2009/03/so-youre-dead…
