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.

Senate confirms 1st openly gay US marshal

Minneapolis assistant police Chief Sharon Lubinski has become the first openly gay U.S. marshal. The U.S. Senate confirmed the Green Bay, Wis. native to be the U.S. marshal for the Minnesota district. Last week’s confirmation also makes her the first female marshal in the state.

Lubinski has served a number of …

Diocese of Niagara to offer same-sex blessings

As of Sept. 1, the diocese of Niagara will allow its priests to bless same-gender couples who have been civilly married.

Niagara becomes the second diocese in the Anglican Church of Canada, after the Vancouver-based New Westminster, to offer a sacrament for same-sex blessings. (The diocese of New Westminster, which allowed same-sex blessings in 2002, currently limits the rite to eight parishes.) The issue of same-sex blessings continues to deeply divide Anglicans in Canada as well as worldwide.

“The Niagara Rite is intended for the voluntary use of priests who wish to offer a sacrament of blessing regardless of the gender of the civilly married persons…” the diocese of Niagara said on its Web site, www.niagara.anglican.ca

The rite may also be used for the blessing or renewal of vows for couples “celebrating a significant moment in their married life together,” said an introduction to the Niagara Rite.
The approval of the rite came five years after the diocesan synod of Niagara passed a motion allowing civilly-married gay couples, “where at least one party is baptized,” to receive a church blessing. The diocesan bishop at that time, Ralph Spence, had refused to implement the motion. In January 2008, a similar motion was approved by Niagara’s diocesan synod, and this time, Bishop Spence gave his approval, but said he reserved the right to determine when the same-sex blessings would move forward.

Last fall, Bishop Spence’s successor, Michael Bird, informed a meeting of the Canadian house of bishops that he intended to develop the rite, saying, “I believe we are among those who have been called by God to speak with a prophetic voice on this subject.”

Under a list of protocols outlined by Bishop Bird, a cleric who wishes to offer the Niagara Rite must contact the bishop’s office “so that a conversation can take place between the bishop and the cleric involved.” The cleric is expected to provide details about the couple the cleric intends to bless “and should be prepared to have a conversation about the response of the parish to the blessings,” the list added. “A date for such a blessing should not be confirmed with the couple until after this conversation with the bishop has taken place.”

A parish is not required to get the approval of its vestry before it can offer such blessings.

Two other dioceses – Montreal and Ottawa – have also informed the house of bishops about their intention to move ahead with same-sex blessings. At that meeting, the house of bishops issued a statement saying that a “large majority” of its members could affirm “a continued commitment to the greatest extent possible” to a moratorium on the blessing of same-sex unions. But it acknowledged that the moratorium, which had been sought by the Archbishop of Canterbury and the primates of the Anglican Communion, would be difficult for some dioceses “that in confidence have made decisions on these matters.”

The issue of whether dioceses can offer same-sex blessings is likely to be revisited at the 2010 meeting of General Synod, the governing body of the Anglican Church of Canada. In 2007, General Synod had agreed that blessing rites for gay couples are “not in conflict” with core church doctrine, but refused to affirm the authority of dioceses to offer them. General Synod delegates had also voted to study revising the marriage canon (church law) to allow priests to marry all legally qualified persons. Marriage for gay people has been legal in Canada since 2005.
Last spring, Council of General Synod (CoGS), the church’s governing body in between General Synod meetings, decided not to ask General Synod 2010 to amend the marriage canon to allow for the marriage of same-sex couples. The decision was made after the faith, worship and ministry committee, which was asked by CoGS to prepare “a theological rationale to allow for the marriage of all legally qualified persons,” said that it found the request problematic. Janet Marshall, committee chair, told CoGS that some members felt uncomfortable about being asked to create a rationale for only one side of the argument.

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History Is on My Side, Says Calif. Justice Who Voted Against Gay-Marriage Ban

Carlos Moreno stood alone in May when he dissented from the decision upholding Proposition 8. But the California Supreme Court justice says history will prove him right — that denying gays and lesbians the right to marry is illegal discrimination.

“Someday at some point my dissent will be the majority view in California,” he said during an interview in his San Francisco chambers late Wednesday. “I think that’s where the law is headed.”

“Equal protection is either equal or it’s not,” he added. “It’s not the kind of thing you can chip away at.”

Moreno, one of four justices to back same-sex marriage last year and the sole vote against Prop 8 this year, took time to talk to The Recorder about his votes, his brief moment on the Obama administration’s short list for the nation’s highest court, and U.S. Supreme Court nominee Sonia Sotomayor’s controversial “wise Latina” comment.

Moreno’s dissent in Strauss v. Horton, 46 Cal.4th 364, came at a touchy time for him. He had been contacted by the Obama administration a week earlier as a possible replacement for retiring U.S. Supreme Court Justice David Souter. Since President Obama has officially stated his opposition to same-sex marriage, it could be assumed Moreno’s position on marriage and Prop 8 might be troublesome.

But, Moreno said, Obama’s vetters didn’t ask him how his Prop 8 vote — which wasn’t yet public — would go.

“They just asked if there were any high-profile cases — past or present, including on the trial court — that would be the kind of case that would draw attention.”

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Courts unlikely to strike down new domestic partner registry until after it begins

An attorney for those hoping to strike down Wisconsin’s new legal protections for domestic partners says he hopes the Supreme Court will decide their request in a matter of weeks.

But by then, gay couples will have already started registering at county courthouses for the benefits. Those sign-ups begin a week from Monday.

Three members of the Wisconsin Family Action group asked the Supreme Court yesterday to declare the domestic partner registry unconstitutional.

They say it violates the constitutional amendment against gay marriage and civil unions which group members helped pass in 2006.

The group calls it an effort to redefine marriage in Wisconsin. But a spokesman for Gov. Jim Doyle, who included the registry in the new state budget, says it’s just a set of basic protections, and it has nothing to do with promoting gay marriage.

Four of the seven justices would have to agree to take the case, and their new session does not begin until September.

See Courts unlikely to strike down new domestic partner registry until … Hudson Star Observer

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Lawsuit Challenges Wis. Domestic Partnership Law

Social conservatives asked the Wisconsin Supreme Court on Thursday to strike down the state’s new domestic partnership law, saying it violates a constitutional ban on gay marriage.

The lawsuit, filed by three members of Wisconsin Family Action, acknowledges the court will not have time to act before the law goes into effect next month but says justices should halt registrations as soon as possible.

Democratic Gov. Jim Doyle signed the law in the state budget last month. Starting Aug. 3, same-sex couples can register with counties to receive dozens of the same legal protections as married couples, including the right to inherit assets, make hospital visits and take medical leave to care for an ill partner.

Wisconsin became the first Midwestern state to enact legal protections for same-sex couples through the Legislature. It also became the first nationwide to allow domestic partnerships despite having a ban on gay marriage and any “substantially similar” relationships. See Lawsuit Challenges Wis. Domestic Partnership Law WCCO

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100 Nations Meet in Copenhagen to Celebrate and Fight for Homosexual Rights

COPENHAGEN, — This week, thousands of people from across the globe will arrive in the Danish capital Copenhagen to take part in the most important international event for homosexual, bi-sexual and transgender men and women – World Outgames 2009. On the agenda is one of the largest and most important conferences on homosexual rights the world has ever seen.

Nearly 100 nations will be represented, and up to 200,000 participants, tourists and Copenhageners are expected to take part in World Outgames 2009 from July 25 – August 2. Apart from focusing on human rights for nine days, a large number of theme festivals and an extensive cultural and sports program will make Copenhagen the place to be.

“By hosting World Outgames, Denmark will send a signal to the rest of the world that it should maintain focus on the right to love whomsoever one wishes, irrespective of gender and sexuality. From Northern Europe to South America, in Eastern Europe and the Far East, there are human rights battles to be fought – particularly for homosexuals. We hope that World Outgames and the thousands of people from around 100 different countries will be able to spread the message to the world,” says Uffe Elbaek, director of World Outgames 2009.

The heart of World Outgames is a major international human rights conference being held in close cooperation with Amnesty International and IBM focusing on the necessity that all people, irrespective of gender and sexuality should have equal rights.

“It is important for Copenhagen that issues concerning homosexual rights and tolerance can be discussed without prejudice. World Outgames enables us to pay tribute to the diversity and openness that is such an innate part of the city. We are greatly looking forward to welcoming participants and spectators,” says Lars Bernhard Jorgensen, CEO of Wonderful Copenhagen.

A great variety of cultural activities will take place in Copenhagen during the event. Cities such as Melbourne, Tel Aviv, Mexico City, Rio de Janeiro and Antwerp will contribute with music, entertainment, dance and much more. Sporting events throughout the city will include some 30 disciplines – such as ice hockey, beach volleyball and triathlon in Copenhagen’s harbor area. Apart from the cultural program and the sport events, the city will be awash with a large number of free activities.

Also, a gay cruise with 2,600 passengers will be docking at Copenhagen during World Outgames, and a mass blessing has been arranged at Copenhagen Cathedral offering gay couples special recognition by the Church to commemorate the 20th anniversary of legally recognized same-sex civil unions in Denmark.

Facts and additional information about homosexual rights in Denmark:
http://www.visitcopenhagen.com/factsheetWOG
Read more about World Outgames: http://www.copenhagen2009.org/
Official program: http://www.copenhagen2009.org/program
Download photos: http://www.copenhagen2009.org/photo

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Gay director denies telling gay actors not to come out

Openly gay director Todd Holland recently explained remarks he made during a panel discussion at the California Outfest film festival. Holland has been accused of telling gay actors to stay in the closet during the panel discussion, an accusation he denies.

“[F]or the past week, my response has been twisted and shoved back into my mouth over and over — so that I appear to be a gay director telling all actors to ’stay in the closet,’” said Holland in a piece for The Wrap. “There are only a few things I allow to be shoved in my mouth — my mangled words are not one of them.”

La Weekly reported that during the Outfest panel, titled “Taking It to the Streets: LGBT Directors Get Political,” Holland “told a small audience that he advises young, gay male actors to ’stay in the closet.’” Holland, a past director on the The Larry Sanders Show, claims he was “just being realistic.”

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Humpday Isn’t Really About Gay Sex

Lynn Shelton’s Humpday, a sexual sitcom, opens with a pair of breeders in bed. A youngish married couple, Ben (mumblecordeon Mark Duplass) and Anna (Alycia Delmore), confess they’re too tired to procreate that night and then confess their mutual relief. As if in response, the doorbell rings at 2 a.m. and Ben’s long-lost college buddy, Andrew (Blair Witch Project survivor Joshua Leonard), stumbles in from deepest Mexico. Anna, who has never had the pleasure, watches the unexpected bromantic action with grim incredulity. Aggressively loud, demonstrative, and hairy, Andrew is a credible representation of Ben’s id.

Reuniting an uptight married man with a footloose old pal, Shelton’s third feature offers a (much) more extreme version of Kelly Reichardt’s Old Joy, also a sort of buddy movie, also shot in the Pacific Northwest. In this case, the lost weekend is steeped in sexual anxiety. Friday night, Ben has to retrieve merry Andrew from a house called “Dionysus” — home to a bi cutie (the director herself) and an omnisexual assortment of roisterers. No orgies, but plenty of stoned dancing. Anna, who has prepared her signature pork chop dinner, sits home alone. She stews; Ben gets stewed. Prompted by news of an amateur porn festival — sponsored by a local alt-weekly — Ben finds himself proposing to costar with showoff Andrew in a mad art project, dude-on-dude action, totally straight, yet somewhere “beyond gay.” Maybe they’ll be famous. The only problem: Just who is going to bone whom?

Having thus invested its protagonists in a game of “chicken,” played to justify their respective life choices, Humpday delivers some excellent situation comedy. The scene where Andrew and Anna have a get-acquainted drink and Andrew inadvertently exposes Ben’s boastful lie that his wife has signed off on their “project” is pure Honeymooners. (Bang, zoom, straight to the moon!) Ben can’t tell Anna why he wants to have sex with Andrew, only that it’s very, very important to him. And, terrified that Ben might think he really did have a yen, Andrew can only sigh, “I wish I was more gay.” Of course. Just as Brüno is more of a comment on celebrity culture than the love (or hate) that dare not speak its name, Humpday is actually less a queer comedy than a satiric view of macho. Appreciative as Shelton may be of her dudes, she has another agenda. Each in his own way, the guys have been freaked by a manifestation of assertive female sexuality — although the term “pussy-whipped” is never used.

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Hate Crimes Bill, Long Overdue

The Jewish Week Writes:

“There’s a good reason the Anti-Defamation League and a number of other major Jewish groups have made passage of a new hate crimes bill a top priority: there are still too many places in America where violent crimes against unpopular minorities are not investigated or prosecuted with any vigor.
Different versions of the measure have again passed both houses of Congress, and once again conservative lawmakers are trying to attach “poison pill” amendments and marshaling their forces to strip the hate crimes provisions when the measures go to a House-Senate conference committee. And once again, Jewish groups face a tough fight in protecting legislation that may be even more critical as the recession fuels the growth of assorted hate groups.”

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The Jewish Week

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