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.
R.I. gov. vetoes gay funeral rights bill
Rhode Island legislators learned yesterday that Gov. Carcieri vetoed the gay funeral rights bill that passed in October.
The legislation, sponsored by Sen. Rhoda Perry and state Rep. David Segal, would have added “domestic partners” to the list of people legally authorized to make funeral, cremation or burial arrangements for their …
Nevada gov. vetoes partner bill
(Carson City, Nevada) Nevada Gov. Jim Gibbons has carried through on his threat and vetoed a bill that would allow same- and opposite-sex couples to register as domestic partners and receive many of same rights as married couples have in the state.
The bill was passed by the Legislature earlier this …
Same-sex marriage is all up to Gov. Lynch in New Hampshire
Gov. John Lynch is facing “a vote of conscience” on whether to allow gay marriage in New Hampshire.
That’s the assessment of Andy Smith, director of the University of New Hampshire Survey Center, who said he does not believe the popular governor will be hurt politically no matter what his decision.
The House passed the gay marriage bill Wednesday, paving the way for it to land on Lynch’s desk. He has three choices facing him: He can veto the bill, sign it or allow it to become law without his signature.
He has stated publicly he believes the state’s civil union law passed in 2007 provides all the legality needed for gay couples and he doesn’t personally support gay marriage. He has also said he has not made up his mind as governor how he will come down on the issue.
No matter what his decision, said Smith, he’ll be just fine.
“He’s not in a position where it matters to him electorally. He’s got a 70-percent approval rating. He can say whatever. He’s got his own independent political machine that’s outside the Democratic party,” he said. “If he signs it, the Republicans will gripe, but they have never been able to field a credible candidate against him. If he vetoes it, the Democrats are still going to vote for him (in 2010).”
Smith said the votes in the House and the Senate — 178-167 and 13-11, respectively — are not dissimilar to state residents’ feeling on the issue. In the most recent poll conducted by the center, 55 percent favored gay marriage and 39 opposed it. The latter number has trended down slightly since the center started polling several years ago, he said. Initially, 42 percent were in opposition. See Same-sex marriage is all up to lynch
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California gay rights timeline
As gays and lesbians have fought for rights and won elected office, public opinion has shifted. Back in 1977, singer Anita Bryant of Florida was leading a Bible-based campaign against homosexuals, claiming they were sinners and a threat to children and family life. When pollsters asked more than 1,000 Californians – face to face, in their homes – whether they agreed with her, 45 percent said yes. Emotions still run high on the issue, but more Californians now say they know gays and lesbians, and approve of same-sex marriage. The shift is particularly pronounced among residents ages 18 to 29. Following are notable twists and turns in the history of California’s gay rights movement.
1951: The Mattachine Society, one of the first gay advocacy organizations in the United States, is incorporated in Los Angeles to combat oppression of homosexuals.
1955: The Daughters of Bilitis, a national lesbian organization, is founded in San Francisco.
1961: José Sarria runs for the San Francisco Board of Supervisors, becoming what is believed to be the nation’s first openly gay candidate for public office.
1975: Assembly Bill 489, by Assemblyman Willie Brown, decriminalizes sexual acts performed in private by consenting adults in California.
1977: The state Legislature overwhelmingly votes to define civil marriage as a contract between a man and a woman. Harvey Milk later becomes the first openly gay person to be elected to public office in California, winning a seat on the San Francisco Board of Supervisors.
1978: Voters defeat Proposition 6, the Briggs initiative, named for Sen. John Briggs, which would have barred gays, lesbians and their supporters from teaching in public schools.
1979: Gov. Jerry Brown issues an executive order barring discrimination against state employees based on sexual orientation.
1984: Gov. George Deukmejian vetoes Assembly Bill 1, the first bill that would have banned job discrimination on the basis of sexual orientation.
1989: Senate Bill 202, by Sen. Diane Watson, requires law enforcement agencies to report hate crimes, including those in which a motivating factor is the victim’s sexual orientation.
1991: Gov. Pete Wilson vetoes Assembly Bill 101, by Assemblyman Terry Friedman, prohibiting discrimination against gays in the workplace.
1992: Wilson signs Friedman’s narrower measure, Assembly Bill 2601, which adds sexual orientation protections to the Labor Code.
1994: Sheila Kuehl is elected to the Assembly, becoming the state Legislature’s first openly lesbian or gay member.
1999: Assembly Bill 26, by Assemblywoman Carole Migden, creates the first statewide domestic partnership registry, allowing the partners of gay state employees to receive health benefits.
1999: Assembly Bill 1001, by Assembly Speaker Antonio Villaraigosa, adds sexual orientation to anti-discrimination provisions of the state Fair Employment and Housing Act.
1999: Assembly Bill 537, by Assemblywoman Sheila Kuehl, makes it illegal to harass students in public schools because of sexual orientation.
2000: Voters pass Proposition 22, which banned same-sex marriage.
2001: Migden’s Assembly Bill 25 greatly expands the rights of domestic partners to include health benefits through private group insurance, death benefits, sick leave, tax deductions and adoption of stepchildren.
2002: The nation’s first legislative Lesbian, Gay, Bisexual and Transgender Caucus is formed in the Legislature. It comprises Assembly members Kuehl, Migden, Jackie Goldberg and Christine Kehoe.
2002: John Laird and Mark Leno are elected to the Assembly, becoming the first openly gay men in the Legislature and members of the LGBT Caucus.
2003: Assembly Bill 205 by Assemblywoman Jackie Goldberg extends to registered domestic partners nearly all the same rights and responsibilities provided to opposite-sex spouses in California.
2004: San Francisco Mayor Gavin Newsom orders city officials to issue marriage licenses to same-sex couples. More than 4,000 couples receive licenses and are married before the California Supreme Court orders a halt to the process until its constitutionality can be determined.
2004: Assembly Bill 2208, by Assemblywoman Christine Kehoe, bars insurance providers from discriminating against domestic partners.
2005: Gov. Arnold Schwarzenegger vetoes Assembly Bill 849, by Assemblyman Mark Leno, which would have legalized same-sex marriage. Schwarzenegger urged gay rights advocates to wait for court rulings on Proposition 22 or ask the voters to repeal the ban.
2008: In a 4-3 decision May 16, the California Supreme Court rules that the state constitution gives gays and lesbians the right to marry. On Nov. 4, voters approve Proposition 8, the ban that’s now being challenged.
Sources: Pew Forum on Religion and Public Life; the American Civil Liberties Union; Encyclopedia Britannica; World Book Encyclopedia; Bee news archives.
Bee research/Aurelio Rojas, Pete Basofin and Micaela Massimino.
See California gay rights timeline
Sacramento Bee – CA, USA
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Tampa Area city council vetoes gay partner benefits
(Tampa, Florida) A proposal that could have led to health benefits for the domestic partners of Hillsborough County employees has been flatly rejected.
Openly gay commissioner Kevin Beckner proposed a motion calling for a study into the feasibility of the benefits. Beckner, who was elected in November, said he proposed the …
