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Culhane:
Pawlenty throws gays under the bus
, Professor of Law, Widener University
05.20.2010 8:46am EDT
05.20.2010 8:46am EDT
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: https://wordinedgewise.org