P000325
Congress of the United States
House of Representatives
Washington, DC
January 29, 2002
Mr. Kenneth Feinberg
c/o Mr. Kenneth L. Zwick
U.S. Department of Justice
Office of Management Programs
950 Pennsylvania Avenue, N.W.
Main Building, Room 3140
Washington, D.C. 20530
Dear Mr. Feinberg,
I was disappointed that the interim regulations seem to do nothing to support what I consider to be the legitimate claims of domestic partners and others who lost someone on September 11 with whom the survivor had both an intimate emotional relationship and a relationship of financial interdependence. Of course this has significant implications for same-sex partners, but it is not limited to them.
As you contemplate the final regulations, I have both a question and a comment My question is, under the interim regulations, how do you interpret the position of the same-sex partner in a committed couple who applies for compensation for a victim who died intestate, having lost the person to whom he or she was emotionally committed, and with whom he or she shared a residence and whose finances were intermingled? In fact, the questions has two parts:
- A. What is the legal situation of such an individual if no blood relative of the deceased objects the claim made by the made by the surviving domestic partner?
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B. What is the status of the surviving claimant if a blood relative does object?
I note that the interim regulations, you say this to be governed by state law. I repeat what I have said to you previously, namely that I do not find anything in the governing, legislation which mandates such a decision. That is, Congress clearly did not require you to follow state law, and we are dealing with a federal statute, under the usual workings of the supremacy clause of the U.S. Constitution.
Beyond that, while I do not believe that state law should be binding in this regard, if you persist in this position, a question does then arise as to how you interpret state law. It does not seem to me that there would be state laws exactly in point. That is, we are dealing here not with the ordinary rules of inheritance, etc., but with a specific act providing compensation for the survivors of those murdered in this way. Thus, it does seem to me that if you are determined to look to state law as governing in this manner, it should be state law very broadly conceived. Indeed, perhaps a more appropriate phase would be "state public policy". As you know, Governor Pataki of New York has decided under his authority, pursuant to the New York State Constitution and state laws, that the New York State victims compensation fund will be administered in a way that recognizes the claims of domestic partners to compensate the victims of September 11. Is this not the best possible analog to the situation addressed by the federal law, and if it is, should not the federal law then be administered in a way that is fully compliant with Governor Pataki's Executive Order?
Thus, to summarize my view, I continue to believe that there is no requirement that state law be followed, but if in fact you are determined to follow such a policy, state law ought to be broadly conceived, and certainly in those states where the legitimate claims of domestic partners are recognized in similar circumstances, the federal government should follow suit. Obviously this would apply even in those cases where other relatives might to seek to interpose objections, because the state policy clearly supports the claim of the surviving partner.
Finally, I want to add that I was very favorably impressed with the thoughtful analysis you received form the Stonewall Democrats and the Log Cabin Republicans, and I express my hope that you are given their letter the very serious thoughtful consideration that it deserves.
Comment by:
Barney Frank
cc: The Feinberg Group, LLP
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