What Gay Couples Lack -- Besides Marriage:
The Crucial Rights Under Tort Law That Only Spouses Can Assert

On Wednesday, April 7, thirteen same-sex couples, with the aid of the New York Civil Liberties Union, sued New York State. They argue that New York should allow them to get married, and has violated their rights by refusing to allow them to do so. This suit is just the latest episode in a series of low-intensity conflicts surrounding the question of whether gays and lesbians should be allowed to be married.

The debate over same-sex marriage has been described by partisans on both sides as a fight over cultural, as much as material, gains. The cultural stakes are very high. However, I think it is important to remember that in most of the country, gay and lesbians couples still lack many of the material benefits that come from marriage.

In this column I want to discuss just one small set of those benefits--the rights in tort that the law gives spouses.

In tort law, the right to recover damages for negligence that causes personal injuries usually remains in the hands of the person who has been injured. Thus, suppose Dan, while driving, hits Paula and injures her. Paula can sue Dan for her personal injuries.

However, sometimes individuals other than Paula can also sue, even if they were not physically injured by Dan. For instance, if Paula died from her injuries, Paula's immediate family -- including her parents -- could bring a wrongful death action against Dan.

What would the damages be? In New York, as in most states, Dan could be held responsible to Paula's family for the lost pecuniary benefits she would have provided them had she lived, as well as for her conscious pain and suffering before she died.

Furthermore, Dan could be sued by Paula's husband for the "loss of consortium" he would suffer even if Paula was not dead, but merely unable to provide him companionship while she was recuperating. ("Consortium" includes sexual companionship, but is certainly not limited to it.)

Finally, in most states, Dan could be sued by Paula's immediate family for their emotional distress if they were present when Paula was struck. This is commonly known as the "bystander rule" for negligent infliction of emotional distress ("NIED"): If a mother is a "bystander," looking on, when her child is hit by a car, then she can sue and recover.

The rules for wrongful death, loss of consortium and NIED are quite technical, and they take up more than a few hours in a first year torts class. But as my students quickly perceive, there is a pattern to the rules.

The pattern is this: The rules clearly give members of the "nuclear" family benefits in tort that no one else has. And, most relevant for our purposes, they rules clearly give to married spouses more benefits than even children might have.

It is always fun to ask students whether they believe that these benefits actually do help incentivize couples to marry -- and courts have sometimes claimed. (These courts are typically stretching to try to explain why, for example, couples who cohabit cannot sue for NIED or loss of consortium and married couples can -- even though both equally lose companionship.)

The "incentive" argument is tenuous at best. It's hard to believe, by comparison, that the so-called "marriage penalty" in the tax code could have been a reason for the decreasing marriage rate in the United States. And it's equally hard to believe that couples marry in order to maximize the damages they might claim if their spouse was grievously injured.

Nevertheless, these can play an important role in people's lives after a horrible accident has happened that turns their lives upside down. The availability of compensation through tort litigation may be as important to grieving spouses as life insurance -- yet it need not be bought through costly premiums, and it is available whether or not one has planned for the future.

In very simple, material ways, the extra money can help bereft partners focus on the important things -- such as helping the injured spouse recover, or, in the case of death, moving on to a new, post-tragedy life.

Furthermore, as the experience with the 9/11 Compensation Fund has shown, there is an important symbolic value to these tort rules. As the Special Master, Kenneth Feinberg, has reported, many parents, children and spouses found the process of claiming money under the Fund's rules to be cathartic.

And conversely, when family members have been excluded from the distribution of the money, their main complaint is that they feel that the government, is denying that the significance or reality of their relationship with their loved one -- while recognizing others with their loved ones.

It is for all these reasons that the partners of gays and lesbians have a strong interest -- emotional, material, and symbolic -- in being included under the rules that favor heterosexual married couples.

The argument for the exclusion of gay or lesbian partners, until now, has been the presented as the same as the argument for the exclusion of heterosexual partners who are not married to the accident victim. (Of course, the argument is not really the same, however: Unmarried heterosexual partners at least had the marriage option; unmarried gay or lesbian partners, until recently, obviously did not.)

Most states do not allow heterosexual couples who "merely" live together to claim the same rights as married couples. For example, California -- which had been famously expansive of tort rights -- rejected in 1988 a claim by a cohabiting boyfriend who witnessed his girlfriend's death in Elden v. Shelden. The California Supreme Court cited the need for "bright line rules" is designing tort claims for "bystanders."

Not all states have been so formalistic with the rules concerning heterosexual couples, however. In 1994, in Dunphy v. Gregor, the New Jersey Supreme Court allowed the fiancé of a man who was scalded to death to sue for NIED even though she was not married to the victim whose death she observed.

The New Jersey court rejected the California court's reasoning. It held, instead, that whether someone's connection to a victim of an accident was "close and intimate" was something that could be decided on a case-by-case basis.

A number of courts, such as New Mexico and New Hampshire, have followed New Jersey's lead, but they are still in the minority.

Furthermore, no state has taken the further step of allowing a same-sex couple to satisfy the functional "intimacy" test set out by the New Jersey Supreme Court -- so that one partner could recover for witnessing the other's death.

That means that, in the eyes of the tort system, gay and lesbian couples are not treated the same when it comes to wrongful death, loss of consortium and NIED as even certain cohabiting heterosexual couples. This is wrong.

Four states have tried to tackle this inequity. In California, for example, there was a public outcry with respect to this issue (among others) when, in 2001, Diane Whipple -- a San Francisco lacrosse coach -- was mauled by two dogs owned by a neighbor in her apartment buildings. Whipple's longtime companion could not sue for wrongful death or NIED because they were lesbians, and (thus) were not married.

The California Legislature then amended the state tort law to allow that "domestic partners shall be entitled to recover damages for negligent infliction of emotional distress to the same extent that spouses are entitled to do so under California law." Plainly, the law extends to both homosexual and heterosexual partnerships.

Three other states -- Vermont, Hawaii, and New Jersey -- have handled the problem by passing broad domestic partnership laws that provide to same-sex domestic partners many but (but not all) of the same rights enjoyed by married heterosexual couples.

Vermont and Hawaii have the most expansive domestic partnership regimes. Both were created in response to court decisions that threatened to force the states to allow same-sex marriage, and guarantee equal rights in tort to gays and lesbians. New Jersey's Domestic Partnership Act was also passed under a judicial threat to require same-sex marriage -- and probably would be used by the courts to extend the Dunphy case to cover same-sex domestic partners.

Meanwhile, Massachusetts, too, is debating whether it should follow the path of Vermont and Hawaii and create a domestic partnership category that would, among other things, extend the material and symbolic benefits of tort law to same-sex couples.

Suppose Massachusetts does nothing (that is, it does not amend its Constitution), and same-sex marriage is allowed for the first the time in the United States. Then gays and lesbians would automatically enjoy the same rights in torts as heterosexuals in Massachusetts.

(It is likely that those tort rights would not be recognized under the choice-of-law rules of many other states -- making cases about accidents involving out-of-staters more complex, and the outcomes potentially less favorable to gays and lesbians.).

The debate over the rights of same-sex couples, whether it is resolved by domestic partnership rules or same-sex marriage, has important implications for the tort law rights of gays and lesbians.

These rights in tort involve benefits which partners in long-term loving relationships have every reason to expect, especially if they are extended to any heterosexual couple who chooses to marry -- even those like Britney Spears, who marry in Las Vegas on a lark.

Furthermore, the recognition of these rights in tort concerns more than "mere" money. The rights to sue confer dignity and social equality to gays and lesbians, and sends the message that we, as a community, take their emotional lives seriously.

The treatment of gay and lesbian partners under the rules of wrongful death, loss of consortium and NIED must reflect an attitude of equality and respect. Currently, in many states, it does not.