By Jared Chausow
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At first, Special Master Kenneth Feinberg left the impression that unmarried partners of the victims would be excluded from the settlement. Then he backtracked, sort of. "I simply say this: 'What does your state law say about who is eligible?' Feinberg said at a March 10 appearance on Meet the Press. "If your state law makes you eligible, I will honor state law. If it doesn't, I will go with the state." On a subsequent CNNfn appearance, Feinberg said he would be willing to look at claims on a "case by case" basis, adding to the confusion about whether he or the states have the final say.
When pressed for particulars about how the decisions will be made, Charles Miller, a spokesman for Feinberg, indicated that a major consideration would be whether same-sex spouses live in states that recognize such relationships. Gay groups say one criterion would probably be domestic-partnership registries. But according to a recent Human Rights Campaign report, only three states have such registries: California, Hawaii, and Vermont (along with the District of Columbia).
The states of New York and New Jersey, where most 9-11 widows live, do not recognize domestic partnerships. As a result, it is possible for a New York City resident who lost a partner in the attack to be disqualified for federal benefits even though the city recognizes same-sex relationshipsand even though Governor George Pataki issued a special executive order granting benefits to such partners. Pataki, along with senators Hillary Clinton and Chuck Schumer, urged Feinberg to make federal benefits available to gay and lesbian New Yorkers. In a January letter to Feinberg, Clinton warned that "the vague language...could result in some partners receiving no compensation from the fund."
Gay rights groups are not happy with the September 11th Fund report, but they remain cautiously optimistic about Feinberg's comments. Lambda Legal Defense Fund attorney Jennifer Middleton says his language was "the most supportive" he has used to date. "He says he was very sympathetic to gay and lesbian claims and encourages people to come find if they are eligible and work out an equitable result. But he made clear that he is bound by state law."
However, when Attorney General John Ashcroft named a special master to oversee the fund, he gave the final decision on all disputed cases to Feinberg. "In every circumstance, he is the last word," says Joe Grabarz of the Empire State Pride Agenda. "He has a huge amount of latitude."
Gay rights groups made recommendations throughout the drafting of the regulations, but to no avail. Now they must deal with a situation in which no one can say who will be treated fairly and who will not. Grabarz thinks it is likely that gays and lesbians will be denied claims. But then what? A protest? A class action lawsuit? So far there are no plans for any of that. Says Middleton, "We're waiting to see what Feinberg does."
According to Middleton, Lambda Legal is representing 20 New Yorkers who lost same-sex partners in the terrorist attacks. Some have wills designating them as beneficiarieswhich, according to Feinberg, will be among the criteria used to determine eligibilitybut others do not. And while some families are willing to share compensation with the surviving partners, others have only just become aware that their late relative was gay. "There are more cases where the relationship is amicable," says Middleton, "but are they going to share a million bucks?"
Middleton points out that, in other incidents, some unmarried survivors have been able to qualify for benefits, but only after lengthy court battles. Feinberg's ruling may well force some gay and lesbian survivors to wage just such a fight.
"Gays and lesbians are going through higher hoops and hurdles for uncertain results" says HRC spokesman David Smith. He believes that the regulations leave the door open for financial relief, but realizes that the current conservative leadership in the Justice Department might complicate matters. "The environment that Feinberg is operating in is somewhat constraining," Smith admits. "But the whole world will be watching."