While numerous news stories noted that some of the victims and heroes of Sept. 11 were gay, some Religious Right groups urged private relief agencies to withhold assistance to surviving partners of gay people who died. The Traditional Values Coalition's Lou Sheldon said "[Relief organizations] should be first giving priority to those widows who were at home with their babies, and those widowers who lost their wives. It should be given on the basis and priority of one man and one woman in a marital relationship." He accused grieving gay survivors of pursuing a political agenda, adding "This is just another example of how the gay agenda is seeking to overturn the one man-one woman relationship from center stage in America, taking advantage of this tragedy."57
Last fall, Congress passed, and the president signed into law, legislation creating the publicly funded "September 11th Victim Compensation Fund of 2001" to provide compensation to those who were physically injured in the terrorist attacks and to the surviving "relatives" of those who were killed. The statute creating the Fund did not define the word "relatives." It also charged the attorney general, acting through a Special Master, with the responsibility for administering the Fund, and for adopting regulations to discharge that responsibility.
Before issuing those regulations, the Department of Justice solicited public comment on them. The Department received comments from numerous organizations and individuals, including People For the American Way Foundation, urging that the regulations make clear that the surviving same-sex partners and non-biological children of gay men and lesbians killed in the terrorist attacks would be able to receive compensation from the Fund. The attorney general was specifically urged to recognize families-in-fact in implementing the Fund, and specifically urged not to rely on legal definitions that treat some families-in-fact as though their members are legal strangers.
Nevertheless, the regulations issued by Attorney General Ashcroft on December 20, 2001 do precisely that: they look to state laws to determine who will be considered a decedent's surviving "beneficiaries" for purposes of the Fund. As Ashcroft well knows, by looking to such state laws, in many instances the surviving same-sex partners and non-biological children of the gay men and lesbians killed by the terrorists will be deemed ineligible to receive compensation under the Fund. Although the regulations permit the Special Master to override the planned distribution of an award from the Fund, notwithstanding any provision of state law, "in order to appropriately compensate the victim's spouse, children, or other relatives," the regulations, like the statute, do not define "relatives." For many surviving family members of the gay and lesbian victims of Sept. 11, Ashcroft's regulations fail to provide for the receipt of compensation from the Fund, and compensation may well depend on the good graces of the Special Master, hardly a fair, consistent or humane response to this national tragedy or the loss that all victims of Sept. 11 have suffered.