N002113
Sunday, January 20, 2002 12:00 PM
NSD / LCR Joint Public Comment on Interim Final Rule
January 20, 2002
BY EMAIL
Kenneth L. Zwick
Director, Office of Management Programs
Civil Division
U.S. Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Director Zwick:
The Log Cabin Republicans (?LCR?) and The National Stonewall Democrats
(?NSD?) welcome the opportunity again to offer joint comment in response
to the request for public comment by the Department of Justice on
regulations and procedures relating to compensation of survivors of
persons killed in terrorist attacks on September 11, 2001. These
regulations pertain to provisions of the Air Transportation Safety and
System Stabilization Act that established the September 11th Victim
Compensation Fund of 2001.
LCR and NSD previously submitted a public comment on November 26, 2001
in response to the advance notice of proposed rulemaking. Thereafter,
on December 19, 2001, the DOJ issued an interim final rule with an
additional request for public comment.
In its preamble, the interim final rule claims to have two objectives:
?(1) to provide fair, predictable and consistent compensation to the
victims of September 11 and their families throughout the life of the
program; and (2) to do so in an expedited, efficient manner without
unnecessary bureaucracy and needless demands on the victims.?
(Preamble, p. 3). As we find the interim final rule to fall short of
ensuring ?fair, predictable and consistent compensation? to victims?
families, we submit this comment.
This comment focuses on two key points of the interim rule: the
practical exclusion of gay and lesbian partners as qualifying as
?personal representatives? of their deceased partners, and the lack of
explicit eligibility of gay and lesbian domestic partners as eligible
surviving beneficiaries of victims of the September 11 tragedy.
Personal representatives, for purposes of the interim rule, will not
include the same-sex partners of victims unless the victims? created
wills naming their partners as their personal representatives. Even in
those cases, family members often challenge such wills in state courts
and, because of prejudice, succeed in eliminating deceased gay and
lesbian people's testamentary intentions. And for the majority of
victims who did not have wills, the interim final rule specifically
leaves to state law the determination of a victim?s personal
representative. (Section 104.4(a)). State probate laws, nearly without
exception, fail to legally recognize relationships shared by same-sex
couples and, therefore, serve to exclude gay and lesbian partners from
qualifying as personal representatives, a categorization at the core of
the Fund's decisioning system. Accordingly, the interim final rule, as
a practical matter, serves to exclude the majority of gay and lesbian
partner survivors from being considered as personal representatives.
The functioning of the interim final rule highlights the need to enact
state and federal laws that treat same-sex partners equally with
legally-recognized couples.
Further, gay and lesbian partners of victims of September 11 are
needlessly excluded from the explicit list of eligible surviving
beneficiaries of victims. (Section 104.4(b)). The interim final rule
describes beneficiaries as
the immediate family of the decedent (including, but not limited to, the
decedent?s spouse, former spouses, children, other dependents, and
parents), to the executor, administrator, and beneficiaries of the
decedent?s will, and to any other persons who may reasonably be expected
to assert an interest in an award or to have a cause of action to
recover damages relating to the wrongful death of the decedent.
(Section 104.4(b)). In no provision of the interim final rule is there
any language to suggest or ensure the fair treatment of a decedent?s
lesbian or gay partner ? again unless the decedent?s will so states. In
the spirit of the objective of fairness set forth in the preamble, we
strongly suggest that the litany of examples of ?immediate family of the
decedent,? as described in Section 104.4(b), explicitly include the
phrase, ?same-sex partner,? or other language that clearly states that
gay and lesbian domestic partners will receive fair and equal treatment
in compensation. (See ?Claimant Eligibility & Compensation? section of
the LCR ? NSD Public Comment Letter dated November 26, 2001).
We realize that some of the lack of specificity in certain language of
Section 104.4 might provide the Special Master an opportunity to include
same-sex partners in a compensation award by the Special Master
exercising his discretion. However, for NSD, LCR, or any other
organization dedicated to equality and fairness under the law, to rely
on one person?s discretion in such an important federal program would be
a dereliction of responsibility. Thus, the final rule, when
promulgated, should make explicit that lesbian and gay partners will --
without doubt or need for the exercise of the Special Master?s
discretion -- be treated fairly and equally.
We submit this comment and respectfully ask for full consideration of
its contents. Please do not hesitate to contact us if we can be of
assistance.
Comment by:
Log Cabin Republicans
National Stonewall Democrats
Washington, DC