A000219
Friday, November 30, 2001 9:59 AM
September 11th
November 21, 2001
Kenneth L. Zwick, Director
Office of Management Programs
Civil Division
U.S. Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue NW
Washington, D.C. 20530
Re: Comments on the Department of Justice's Rulemaking Regarding the
September 11th Victim Compensation Fund of 2001
The following comments respond to the Department's November 5 Notice of
Inquiry and Advanced Notice of Rulemaking Re: the September 11th Victim
Compensation Fund of 2001.
The laudable purpose of the September 11th Fund is to provide
compensation for the losses of relatives of those who died, and those
who were injured. See Air Transportation Safety and System Stabilization
Act § 403. It is crucial for the many grieving families that the
regulations implementing this purpose permit recovery for all deserving
relatives, including the committed partners or non-biological children
of gay and lesbian victims of the terror attacks. For those whose family
relationships do not meet certain strict formal legal definitions, the
enormity of the loss of a beloved companion or parent could be
compounded by the prospect of ineligibility for compensation intended
for their protection. The Department of Justice should not permit this
potential inequity. We urge the Department to include among relatives
eligible for compensation those who lost their life partners or de facto
parents or children, regardless of sexual orientation and marital
status.
As Senator Charles Schumer noted in his October 31 letter to Attorney
General Ashcroft:
The need for support and recompense is no less real for these
survivors than it is for the countless other relatives who lost loved
ones. America has reached out with enormous generosity to all of the
victims because our common humanity recognizes that grief and loss are
not reserved to any single culture or group - they are borne by each and
every one of us, whatever our race, religion, or sexual orientation.
Very few of them had prepared wills with their partners, a circumstance
which is not surprising considering the relative youth and good health
they enjoyed. While many are fortunate to have the support of the
biological relatives of the deceased, others (like many affected by this
tragedy) face the added stresses of pre-existing family difficulties
that have not abated in the wake of the attacks. Each and every one of
them is reliant on the continuing good will and generosity of parents,
siblings or children of the victim to treat them fairly.
The federal September 11 Fund should ensure fair treatment of all
surviving family members, including same-sex partners and de facto
children of those who perished. Operated on a simple principle of
equitable distribution of damages in proportion to losses sustained, it
can serve the Congressional purposes of helping families to recover
their economic security and allaying the financial uncertainty of
survivors.
All Relatives And Dependents, Including Same-Sex Partners and De Facto
Parents And Children, Should Be Eligible For Compensation In Proportion
To Their Losses.
In the grim task of valuing a life, the operative principle ought to be
to award compensation to those whom the deceased helped support in both
material and emotional ways. Those who lost a partner suffer the
emotional deprivations of being without a day-to-day companion, in
addition to the help of another paycheck within an intermingled
household economy. Those who lost a parent have lost the support and
guidance of someone who provided nearly everything. And those who lost a
child will be without the security of their son or daughter's
companionship and assistance as they grow older. Each survivor's losses
should be equally considered and accounted for, based on the daily
realities of emotional and financial support the victim provided.
Compensation should not be limited by legal distinctions among types of
relatives, because those distinctions may frequently be untethered to
the actual family burdens shouldered by those who died.
Those eligible for compensation as a survivor of a deceased victim
should include individuals who can show that they had (1) a family
relationship of mutual interdependence with the victim, including as a
de facto parent or child, and (2) suffered losses of the sort identified
in the Act at §§ 402(5) and (7). Where the individual does not share a
blood or legal tie with the victim,1 mutual interdependence is shown if
the claimant shared a residence with the victim and was emotionally and
financially intertwined in a familial relationship.
The federal Fund should look to New York's law governing emergency
relief awards for guidance. Only days after September 11, Governor
Pataki issued an Executive Order granting surviving partners of the
World Trade Center attacks benefits comparable to those received by
surviving spouses from the state's Crime Victim Board. See Exec. Order
No. 113.30, Suspension of Provisions Relating to Crime Victims Awards
for Persons Dependent Upon Victims of the World Trade Center Attacks
(October 10, 2001), available at
. Eligibility is based on a
showing of mutual interdependence with the victim, in recognition that
anyone who shared with the victim living expenses, day-to-day activities
and the emotional bonds of a family deserves help in this time of need.
That Executive Order follows the example set as early as 1989 by New
York's highest court, which interpreted the state's rent control laws to
protect the life partners of rent-controlled tenants. See Braschi v.
Stahl Associates, 74 N.Y.2d 201 (1989). That Court held that the law's
protection against eviction when a loved one dies "should not rest on
fictitious legal distinctions or genetic history, but instead should
find its foundation in the reality of family life." Id. at 211.
Regulations codifying the Court's holding appear at 9 N.Y.C.R.R.
2104.6(d)(3).
Permitting all relatives who suffered losses to be eligible for
compensation ensures equitable treatment of all the diverse families
that suffered losses in this tragedy. As the United States Supreme Court
recently noted, "[t]he demographic changes of the past century make it
difficult to speak of an average American family. . . . [P]ersons
outside the nuclear family are called upon with increasing frequency to
assist in the everyday tasks of childrearing," Troxel v. Granville, 530
U.S. ___, 120 S.Ct. 2054, 2059 (2000), and the same can be said of other
daily supports for family members. The proposed criteria effectively
account for the variety of family configurations and support obligations
that Americans create today.
All Types Of Compensation Should Be Available On Equal Terms To Same-Sex
Partners.
Compensation for economic losses as defined at § 402(5) and noneconomic
losses as defined at sec. 402(7) should be equally available to all
those eligible for compensation in proportion to their demonstrated
losses. There is no principled basis for distinguishing among survivors
as to the kinds of losses for which recovery is available. For example,
excluding anyone but a legal spouse from recovery for loss of
companionship or loss of consortium would be to fail to account for
actual losses suffered by many survivors and to impose a barrier that
has the effect of discriminating on the basis of sexual orientation.
The
same would be true if same-sex partners were eligible for lesser amounts
than legal spouses. Rather, everyone who suffered similar losses should
be entitled to compensation under the same principles.
Respectfully submitted,
Sincerely,
Individual Comment