Court says relief for Soviet survivors was the more pressing need
A unanimous federal appeals court rejected a challenge to U.S. District Judge Edward R. Korman’s decision last year that a small portion of a $1.2 billion compensation fund for Holocaust survivors not be diverted into a special effort to find gay Holocaust survivors and support research and outreach efforts into homosexual persecution during Hitler’s deadly Nazi regime.
Finding that wide discretion was vested in Korman and Judah Gribetz, the special master appointed to determine distribution from the fund, the court decided in its September 9 ruling not to upset plans for allocating remaining funds for humanitarian assistance to Holocaust survivors living in the former Soviet Union.
Ever since a settlement was reached in 1998 in the class action suit against Swiss banks charged with various improprieties during the Nazi years from 1933 to 1945, there has been intense interest in how the $1.25 billion settlement fund would be divided up. Early in the process there was agreement that a share of the money would go to surviving gay Holocaust victims, but it has proved difficult to locate them.
A group formed to represent the interests of gay survivors, the Pink Triangle Coalition—the name inspired by the symbol the Nazis required gay concentration camp inmates to wear on their uniforms—proposed that one percent of the settlement fund be set aside for “scholarly, educational, and outreach efforts related to Nazi persecution of homosexuals.” Some of this money would be used to undertake intensive research efforts that might lead to the discovery of more than the paltry handful of gay Holocaust survivors who have come forward to date. The rest would be used to promote education about the gay experience during the Holocaust, including research efforts, museum exhibitions, and school curriculums.
In his opinion for the Second Circuit Court of Appeal, Judge José Cabranes quoted from the Coalition’s proposal in noting that the post-war political climate led gay survivors to stay hidden.
“After 1945, the circumstances encountered by homosexual survivors of Nazi persecution are unique because homosexual men continued to be singularly and intensively pursued, imprisoned, and persecuted in West Germany and Austria under the same legal codes used by the Nazis until as late as 1969 and 1971, respectively,” Cabranes’ opinion quoted. “Survivors were publicly stigmatized, harassed, silenced, and re-imprisoned; they were excluded from compensation and ignored by elected officials for more than 40 years. As a consequence, very few homosexuals victims have come forth to seek compensation or claim assets.”
The Coalition also pointed out that unlike the other victim groups, “homosexual victims had no extended familial, social, and organizational networks outside of Germany such as those relied on by victims from religious or ethnic groups which could advocate on their behalf and contribute to the formation of a collective memory.”
In evaluating funds left over after the initial distributions were made, the special master recommended they be used for additional assistance to “identified destitute Jewish survivors in the Former Soviet Union.” The Pink Triangle Coalition proposed drawing down a very small percentage of these funds.
Korman decided that the pressing needs for assistance by identified destitute survivors outweighed the interests being advocated by the Coalition. He pointed out that it was distinctly possible that gay survivors not so identified to the court may have benefited as members of religious and ethnic groups given support from the fund. He cautioned against assuming that gay survivors “have not received a proportionate share of the total distribution in this case,” as the Coalition had argued.
Cabranes rejected the Coalition’s argument that Korman’s decision was part of the “long-standing historical refusal to recognize the suffering of thousands of homosexuals who remained forgotten victims of Nazi persecution for decades after the end of the Third Reich,” pointing out that Korman had acknowledged this history in his opinion.
“Although the District Court concluded that payments to needy Holocaust survivors take priority over the scholarly, educational, and outreach programs proposed by the [Coalition], it never underplayed the suffering caused by Nazi persecutions against homosexuals,” Cabranes wrote.