WHAT SHOULD BE CHANGED BEFORE THE RULE FOR SEPTEMBER 11 VICTIM COMPENSATION BECOMES FINAL:
The Need For Fairness For Domestic Partners

On December 20th, the Justice Department released its "Interim Final Rule" for the September 11th Victim Compensation Fund. It has invited comments from the public until January 21st, when the Special Master, Kenneth Feinberg, will gather what he has heard and produce the final rules for those seeking compensation.

There has been some discussion in the media about the adequacy of the amounts set out in the proposed and regulations. Commentators have also taken issue with the rigidity of the schedule that Feinberg has proposed to use to calculate the sums that claimants would presumably receive.

In my last column I recommended that Feinberg ignore those groups of victims who, understandably, want him to abandon the schedules and move to a more individualistic (and more generous, one imagines) case-by-case review of the suffering and earnings that were lost by the approximately 3000 victims of the terrorist attack.

In today's column, in contrast, I want to mention what I think Feinberg should change, in order to increase fairness to the loved ones of September 11th victims, before the Interim Final Rule become truly final.

The Treatment of Unmarried Domestic Partners: Making the Rule Nondiscriminatory

As a number of civil rights organizations have noted, the proposed rules are vague about how unmarried partners, whether gay, lesbian, or straight, will be treated. The rules should be clarified so that those who claim on behalf of their partners are not discriminated against because of their failure to have married.

The problem is this: What, exactly, should those rules look like to ensure that they are nondiscriminatory towards unmarried partners? If the rules are to be fair, they will have to move beyond current tort law - which remains decades behind the rest of society in its treatment of gays and lesbians. Tort law still reflects a deep prejudice in favor of marriage - indeed, one which may be too deeply rooted for Feinberg to avoid, although he should try to do so.

It is a grimly obvious fact that, although the proposed rules describe how "victims" of the September 11th attack may apply for compensation if they wish to avoid litigation, almost none of the victims will be filing for themselves. The real parties submitting the claims will be the victims' "Personal Representatives," as defined by the regulations. Feinberg suggests that the personal representative be either the executor of the victim's estate or, if there is no will, the person identified by state law as the "first person in the line of succession."

The money will not necessarily go to the personal representative, although often it might. Rather, the money will go to the victim's beneficiary-that person "entitled under the laws of the [victim's] domicile to receive payments or benefits from the estate." This means that, in theory, anyone-married or unmarried, gay or straight - could be either a personal representative or a beneficiary under the proposed regulations.

But it is not so simple. One has to ask two sorts of questions when thinking about how the Fund would operate without more clarification. First, does the schedule proposed by Feinberg have a built-in bias towards married victims? And second, in the absence of a written instrument, such as a domestic partnership registration, that makes clear that the partner of a deceased victim is his or her beneficiary, executor, or both, what will happen to gay, lesbian, and unmarried partners?

A Built-In Bias Towards Married Victims

As to the first question, there is clearly a bias towards married victims in the proposed schedules. In my earlier essay, I accepted as a given that schedules would be inevitable if the Fund was to avoid the randomness and unfairness that our current tort system produces in jury verdicts. Furthermore, I accepted as a given that, at every income level, victims should not receive anything close to what they might have received had they been able to sue someone in negligence and won. But even given all these caveats, I cannot accept that victims should receive vastly different amounts under the schedules for no other reason than that they are married.

Let us imagine two 30-year-old lawyers, Joan and Susan, who (hypothetically), perished in the September 11th attack and who had earned $100,000 per year. Joan was unmarried and had no children. Maybe she had a lesbian partner, or maybe she had a boyfriend with whom she cohabited-it does not matter for the moment. Susan was married but had no kids.

According to the schedules published by the Justice Department on December 21, Joan's personal representative would be able to collect approximately $1,639,000 on behalf of Joan's beneficiary. Because Susan was married, however, Susan's representative would be able to collect approximately $2,640,000. Why the one million dollar discrepancy?

The difference cannot be explained by presuming a difference between what Joan and Susan's estates would have received had they each brought a claim for their pain and suffering before death. Feinberg has stated, quite sensibly, that unless specific evidence is offered to the contrary, it will be presumed that all the victims suffered the same.

I would guess that the million dollar difference comes from the assumption that Susan would have given a portion of her earnings to her husband over the course of her lifetime. This assumption-which is built into New York State tort law, in the form of its statutory wrongful death action-is the backbone of the multimillion-dollar judgements that one reads about after a plane crash or a horrific case of medical malpractice. In fact, in New York, wrongful death claims are never about compensation for the emotional loss of a loved one. By law, they can be only for the economic value of their services or earnings.

But why assume that Susan would have given a million dollars to her husband, and Joan would not have given a million dollars to her partner, if she had one?

One might argue that the law presumes that married spouses give their money and services to each other. Susan's husband will automatically be treated as her beneficiary by trusts and estates law. In contrast, unless Joan had specifically provided so in her will, it is not clear in any state except (perhaps) Hawaii and Vermont that her partner would be treated automatically as her beneficiary.

Furthermore, some state's laws (such as New York's) assume that only a blood relative or a married spouse can bring a wrongful death action to recover the economic value that they would have received had their loved one not died. In a 1998 case called Raum v. Restaurant Associates, for example, the First Department of the Appellate Division barred a wrongful death claim by a gay man whose partner was allegedly killed by the defendants' negligence.

But all of these arguments seems wrong to me. First of all, if Joan had the perspicacity to name her partner in her will, then Feinberg's rules should provide some opportunity for the partner to demand as a matter of right that Joan's payment be as large as Susan's. Second, it seems to me that the Justice Department should not accept the outmoded assumptions built into state law that only married spouses or blood relatives can be presumed by law to be the beneficiaries of an estate.

Absent a Will, How Will Unmarried Domestic Partners of Victims Be Treated?

This, of course, leads me to the second question. In the absence of a will naming a gay, lesbian or unmarried heterosexual partner an executor and a beneficiary, what ought Feinberg to do?

It might be the case that he should develop rules that would treat a domestic partnership registration as the functional equivalent of a marriage certificate. But this is clearly an inadequate measure. Despite the recent popularity of domestic partnership registration (it has been available in New York City for a number of years, for example), no one ever thought that it would be used as the test of one's legal rights.

Feinberg might respond that the entire structure of the Victim Compensation Act is one of compromise. No one is getting everything they want. For gays, lesbians and unmarried heterosexual partners, there is the possibility of recovering under the Fund, but that possibility is circumscribed by the biases already present in our tort law, and the pressures of time and money.

Normally, I would find this argument persuasive. But in this case, where the compromise reflects deeper political discrimination already present in our society, I would expect the Justice Department to go back and try one more time. This sort of compromise reinforces the law's prejudices, and for that reasons has effects that extend beyond just this particular government program. Feinberg should offer a better solution for unmarried domestic partners, whether gay, lesbian, or straight, before the Interim Final Rule becomes final.