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.
Hawaii Senate passes civil unions bill
(Honolulu) The Hawaii Senate approved same-sex civil unions Friday, potentially setting up the measure for final passage as soon as next week.
The Senate passed the bill on an 18-7 vote, moving it to the House and signaling that the Senate’s Democratic majority has enough votes to override a possible veto …
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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Original source : http://gay_blog.blogspot.com/2009/07/president-oba…
Gay marriage now key issue for Corzine
Gov. Corzine has made “marriage equality” for gays and lesbians a prominent piece of his reelection campaign, taking another step in his conversion on the issue and encouraging gay-rights advocates who hope to see same-sex marriage approved in New Jersey this year.
In public speeches and private appearances, Corzine, who as recently as 2006 said he believed marriage should be between a man and a woman, has touted his support of same-sex marriage.
In raising the issue, he has tried to draw a bright-line divide with his Republican opponent, Christopher J. Christie, who has said he would veto a bill allowing gay and lesbian couples to wed.
“We believe that government should allow people the freedom to marry whomever they love,” Corzine said in his general-election kickoff speech June 2.
At a gay-pride parade days later in Asbury Park, N.J., Corzine referred to his campaign and told cheering revelers: “Marriage equality is on the ballot. Are you going to help us make it come to pass in New Jersey?”
His campaign posted a video clip online showing the event.
See Gay marriage now key issue for Corzine
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Original source : http://gay_blog.blogspot.com/2009/06/gay-marriage-…
Public Outcry Kills Anchorage Gay Protections
An Anchorage, Alaska gay protections bill is likely doomed as public sentiment turns sour, the Anchorage Daily News reported. Hundreds of opponents appeared to testify against the bill at a Wednesday Anchorage Assembly hearing on the issue. The bill would protect gay men and lesbians from discrimination in the areas of employment, housing and credit. An original draft included transgendered persons, but lawmakers cut out the provision amid loud protest. Opponents’ demands have resulted in three drafts of the ordinance, including one that turns the protections on their head. That version would allow discrimination based on sexual orientation, while protecting other classes. “The added language in the third version guts the intent and the integrity of the ordinance,” said Jackie Buckley, spokeswoman for EqualityWorks, the group that lobbied for the gay protections. But time is ticking as a new, unsympathetic mayor is about to be installed on July 1, Republican Mayor-elect Dan Sullivan. Sullivan, however, gains veto power over all ordinances seven days prior, on Wednesday. As people continued to pile in to testify against the bill – nearly 600 people have signed up and only 300 have been heard – Anchorage Assembly Chairwoman Debbie Ossiander said Friday she will continue to allow testimony. The extension is likely to make it impossible to approve the bill before Sullivan gains veto control. Acting Mayor Matt Claman, a Democrat, supports the measure.
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Original source : http://gay_blog.blogspot.com/2009/06/public-outcry…
Marriage fight looms IN mAINE
Opponents and supporters of gay marriage are laying the groundwork for a tough summer political campaign that experts say will put Maine in the national spotlight.
Organizers of an effort to overturn a new law legalizing same-sex marriage in Maine have hired the California public relations firm that ran the successful Proposition 8 campaign that overturned same-sex marriage there.
And supporters of same-sex marriage, who oppose the people’s veto effort, have hired a seasoned Maine political strategist who ran the successful Maine Won’t Discriminate campaign in 2005. That campaign fought a people’s veto of Maine’s gay rights law.
Maine became the fifth state to legalize gay marriage in May, when the Legislature passed a bill and Gov. John Baldacci signed it into law. Opponents, led by the Catholic church and other clergy, immediately began the campaign for a people’s veto, which would ask voters to overturn the law.
Organizers of the people’s veto are attempting to collect 55,087 signatures of registered Maine voters to put the question on the ballot. The same-sex marriage law would take effect 90 days after the Legislature’s June 13 adjournment. But if the veto effort collects enough signatures before then, the law’s implementation would be stayed.
At least five political action committees have been formed to help raise funds to support the people’s veto effort. Two have been formed to oppose a people’s veto.
According to the latest filings with the state Ethics Commission, most haven’t raised money. But one, StandForMarriageMaine.com, has raised $60,000 from the National Organization for Marriage. The next filing deadline is July 15.
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Original source : http://gay_blog.blogspot.com/2009/06/marriage-figh…
Maine Gay-marriage foes hire California firm that ran Prop 8
Opponents and supporters of gay marriage are laying the groundwork for a tough summer political campaign that experts say will put Maine in the national spotlight.
Organizers of an effort to overturn a new law legalizing same-sex marriage in Maine have hired the California public relations firm that ran the successful Proposition 8 campaign to overturn same-sex marriage there.
Supporters of the law have hired a seasoned Maine political strategist who ran the successful Maine Won’t Discriminate campaign in 2005. That campaign fought a people’s veto of Maine’s gay-rights law.
Maine became the fifth state to legalize gay marriage in May. Opponents, led by the Catholic Church and other clergy, immediately began campaigning for a people’s veto, which would ask voters to overturn the law.
Organizers of the veto effort are attempting to collect 55,087 signatures of registered Maine voters to put the question on the ballot. The same-sex marriage law will take effect 90 days after the Legislature’s June 13 adjournment unless the veto effort collects enough signatures before then, which would put the law on hold.
At least five political action committees have been formed to help raise funds to support the people’s veto effort. Two have been formed to oppose the veto.
According to the latest filings with the state Ethics Commission, most haven’t raised money. But StandForMarriageMaine.com has raised $60,000 from the National Organization for Marriage. The next filing deadline is July 15.
See Gay-marriage foes hire California firm that ran Prop 8
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Original source : http://gay_blog.blogspot.com/2009/06/maine-gay-mar…
Deleware Gay rights bill heads to full state Senate
The state Senate next week will debate a bill adding sexual orientation to Delaware’s anti-discrimination laws.
Newark-area Democrat David Sokola says he’s grateful Senate leaders let him offer his own version of the bill.
Audio Here
During the past 10 years, similar bills have reached the Senate only to die in committee or as the result of a so-called “desk-drawer veto”, but Senate Insurance Committee members Wednesday voted 5-0 to send Sokola’s measure, which has the support of Governor Markell and key House leaders, to the full Senate.
Sokola says he expects spirited opposition from the bill’s opponents, but is confident the measure will pass. See Gay rights bill heads to full state Senate
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Nevada lawmakers reject veto of partnership bill
(Carson City, Nev.) Nevada’s Assembly voted Sunday to override Gov. Jim Gibbons’ veto and to change state law so that domestic partners, whether gay or straight, have many of the rights and benefits that Nevada offers to married couples.
The Assembly’s 28-14 vote – the bare two-thirds majority needed – followed …
Nev. overrides guv’s partnership bill veto
The Assembly overrode Gov. Jim Gibbons’ veto on a 28-14 vote Sunday and changed state law so that domestic partners, whether gay or straight, have many of the rights and benefits that Nevada offers to married couples.
The Assembly’s vote — the bare two-thirds majority needed — followed the state Senate’s similar decision, with no votes to spare, a day earlier to make the historic change in state law over the conservative Republican governor’s objections. Assemblywoman Sheila Leslie, D-Reno, termed SB283 “the most important civil rights legislation we have had in all my years here,” adding the law change ensures “justice for all, not justice for some.” Leslie said proponents of the new law were asking “that their government give them the ability to choose who they will live with and whom they will love.” SB283 provides that domestic partners have the same rights as married couples in matters such as community property and responsibility for debts. It also prohibits discrimination against domestic partners.
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Original source : http://gay_blog.blogspot.com/2009/05/nev-overrides…
