July 1, 2013

DOMA Goes Down: Will It Affect Injury Claims for Illinois Couples?

by Levin & Perconti

If you watched any television news or stumbled upon the front page of any newspaper last week, chances are you know that the United States Supreme Court issued important rulings related to gay marriage. Two opinions were released.

In one the Court found that defendants in a case challenging lower court rulings on California’s gay ban amendment (Prop 8) did not have standing. That decision effectively ends the ban in that state, though its ruling will not technically have effect elsewhere in the country.

The second case was a bit more far reaching. In that decision (U.S. v. Windsor, view opinion here), the Court found that Section 3 of the so-called ‘Defense of Marriage Act” (DOMA) violated the U.S. Constitution. This section of the law, passed in 1996, prohibited the federal government from recognizing the marriages of same-sex couples, regardless of whether those unions were legal in their individual states. This law therefore prevented same sex couples from many different benefits and obligations associated with inheritance rights, Social Security benefits, tax privileges, immigration rights, and well over 1,100 others--including many that touch on the civil justice system.

What is the effect on Illinois?

Importantly, striking down on DOMA may not have immediate impact in Illinois. That is because Illinois currently only allows same sex couples to enter “civil unions,” not marriage. While there will undoubtedly be more litigation to flesh out the specifics of the decision, most believe that the benefits now available as a result of the litigation will only affect those in states that allow full marriage--not civil unions, regardless of how expansive.

However, efforts are well underway to treat same and opposite sex couples equally under Illinois law. The Illinois Senate approved such a bill this spring and Governor Quinn supports the move. All that is needed is passage from the Illinois House, which some speculate may happen later this year or early next year.

Federal Wrongful Death & Loss of Consortium
If Illinois does join the twelve other states that treat gay couples equally, then as a result of this DOMA ruling, same sex couples in Illinois will gain legal rights under the federal law. Most notably, partners in same sex unions would have standing to pursue wrongful death claims under the federal law (they already possess this right under state law as a result of civil unions).

Right now, under federal law, same sex partners, no matter how long they have lived as a couple, are treated as nothing more than friends. There are specific legal rules regarding who can bring an injury lawsuit seeking accountability for negligence which leads to the death of a loved one. Not just anyone can bring the suit--usually only a spouse and children, and, barring that, a few other closely related relatives. Of course, this is as an obvious disadvantage to same sex couples who are unable to marry. The DOMA decision, however, throws out this federal unfairness, and allows married same sex partners the same legal rights as opposite sex partners.

The same principles will apply to “loss of consortium” damage claims. This refers to a specific type of loss that a party can seek recovery for in an injury lawsuit. Only legal spouses can pursue this recovery, however. By treating all married couples, equally, the playing field will be leveled on this front as well as a result of last week’s ruling.

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