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.

Slow start: No rush for same-sex weddings in Vt.

(Montpelier, Vt.) Bed-and-breakfast owner Jeff Connor was hoping for a boom in business once Vermont opened the door for same-sex couples to marry.

The law takes effect Tuesday, but he’s still waiting. So far, he has only one wedding celebration planned at the 11-unit Grunberg Haus, in Duxbury. It’s for Sept. …

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 …

Pro-gay marriage group spent big in Vermont

Vermont Freedom to Marry says it spent more than $293,000 lobbying lawmakers and the public on the same-sex marriage bill that was approved by the Legislature, far outspending its opponents.

In lobbyist disclosure forms filed Monday with the Vermont Secretary of State’s office, the pro-gay marriage group reported spending about $65,000 between April 1 and June 30 — some of it in the week leading up to the Legislature’s April 7 vote.

Take It to The People, which opposed the measure, spent about $10,000 altogether but none in the reporting period.

See Pro-gay marriage group spent big in Vermont Boston Herald

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Another front for fairness

AT A HEARING at the State House last week, supporters of a bill to ban discrimination on the basis of gender identity and expression outlined the myriad barriers that confront transgender people – those who are born male but live as females, or vice versa. Unlike those whose religions or sexual orientations expose them to discrimination, transgendered people might not be able to avoid the issue when applying for jobs, apartments, or loans. The truth may become evident from a check on a Social Security number or a search of credit reports.

Transgender advocates aren’t looking for sympathy. The goal of the legislation, introduced by Representative Carl Sciortino, is to give transgender residents of Massachusetts space to live without discrimination or violence. The bill responds sensibly to a real problem, and deserves to pass.

Transgender people don’t make the transition lightly; many, though not all, undergo gender-reassignment surgery. The case of Dana Zircher, profiled recently by the Globe’s Bella English, underscores the difficulty of the process, even when individuals have supportive families and employers. Zircher, a software designer and a parent, has undergone a divorce, surgery, and 350 hours of electrolysis.

Instead of addressing the complexities of actual people’s lives, though, opponents are trying to undermine Sciortino’s legislation by calling it a “Bathroom Bill.’’ The difference between a transgender woman and a man who wants to infiltrate a ladies’ room is perfectly obvious, at least to anyone who is not deliberately obfuscating the issue. The difference would surely be obvious to police officers and judges. Thirteen other states, including Vermont, Maine, and Rhode Island, and dozens of cities, including Boston and Cambridge, already forbid discrimination against transgendered people – and public washrooms are as safe as ever.

See Another front for fairness

Boston Globe

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Gay marriage stalls as RI lawmakers wrap up

PROVIDENCE, R.I. — Rhode Island seems almost certain to remain the only New England state that does not recognize gay marriage after measures legalizing same-sex unions stalled just before the part-time General Assembly ended the bulk of its annual work.

None of the bills legalizing same-sex marriage in Rhode Island advanced to a floor vote this session, continuing a trend begun in 1997.

The lack of State House action on gay unions means that Rhode Island is unlikely to allow same-sex marriage anytime soon, despite decisions this year by lawmakers in New Hampshire, Maine and Vermont to join Connecticut and Massachusetts in legalizing marriage equality.

“I was hoping the momentum that was going around New England and the support we had in the House would get enough representatives to ask for it,” said Rep. Frank Ferri (D-Warwick), who is gay and sponsored same-sex marriage legislation. He and his partner wed in Canada.

Equally disappointed were marriage equality opponents, who wanted voters to be able to decide whether the state constitution should be changed to ban gay marriage.

“I think that if you put it to the voters on a statewide basis, gay marriage would fail,” said Rep. Jon Brien, D-Woonsocket.
See Gay marriage stalls as RI lawmakers wrap up

Bay Windows

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Se3nate Power struggle impedes New York gay marriage vote

New York’s annual Gay Pride parade was a colorful celebration of 40 years of progress toward civil rights for gays, but once the dust settled, gay couples who wish to marry in New York state remain thwarted.

A bill to legalize gay marriage in the state that saw the dawn of the gay rights movement is mired in political stalemate in the state capital Albany, where Democrats and Republicans are battling over control of the state Senate.

“I had hoped today’s march would have been a bit of a wedding march. It’s not,” Christine Quinn, the gay speaker of the New York City Council, said at Sunday’s Gay Pride parade. Held annually, this year’s event marked the 40th anniversary of the Stonewall riots in New York’s Greenwich Village, which triggered the modern U.S. gay rights movement.

“We are disappointed. … But I know there have been other times our community has been disappointed and you need to keep fighting,” Quinn said at the start of the parade, which organizers said drew more than a million people.

Gay couples can marry in Massachusetts, Connecticut and Iowa and will be allowed marry in Vermont starting in September and in New Hampshire from January. Other states offer same-sex unions that grant many of the same rights as marriage.

See Power struggle impedes New York gay marriage vote

Reuters

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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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VT program helps students explore gender

(Burlington, Vt.) Like plenty of other high school students, a group of about a dozen Vermont teenagers trundled into a youth center one day every week this spring to participate in an after-school program.

But their program was different; it focused on gender.

The nine-week program, partially funded by the Burlington School …

Gay Marriage Battle Heats Up In Nation’s Capital NPR

Until 2004, same-sex couples couldn’t wed anywhere in the country. Now, gay marriage is legal in Massachusetts, Connecticut, Iowa, Vermont, Maine and most recently New Hampshire.
Despite these historic strides by the gay rights movement, though, the United States is still a nation divided over whether to redefine marriage.
The California Supreme Court on May 26 upheld the state’s voter-approved constitutional ban on gay marriage, but ruled that some 18,000 same-sex couples who wed before Proposition 8 took effect would still be married under state law.
Twenty-nine other states have enshrined voter-approved prohibitions blocking same-sex marriage in their state constitution as a way to keep state judges from overturning the bans. See Gay Marriage Battle Heats Up In Nation’s Capital NPR

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