By Randy Kessler and Stefanie Potter
What is abundantly clear to any American layperson who has access to television or the Internet is that same-sex marriage is now recognized in this country. However, what may not be so inherently obvious is the impending question that necessarily follows from the recognition of same-sex marriage in the United States—what are the benefits of becoming legally married? While this article does not seek to answer that question comprehensively, it does serve to provide guidance to attorneys representing plaintiffs, or potential plaintiffs, in an impending personal injury case as to the possible remedies available to them as a married person, in comparison to an unmarried person, in Georgia. More importantly, this article seeks to provide clarity as to the impact of the Obergefell v. Hodges, 135 U.S. 2584 (2015) decision on personal injury law in this state.
Recovery by a Married Plaintiff in a Personal Injury Case in Georgia
In any personal injury case, there are several sources of potential damages, and the availability of some of these types of damages depends on whether the person claiming the injury is seeking recovery based on his or her status as a married person. In other words, certain remedies are only available to a plaintiff who is married and who is claiming damages due to a loss associated with his or her spouse.
In a personal injury action that has resulted in the death of a person, damages are sought by a representative of the deceased person via the use of a wrongful death statute. Georgia’s wrongful death statute makes it clear that recovery is limited to a spouse or child. “The surviving spouse or, if there is no surviving spouse, a child or children, either minor or sui juris, may recover for the homicide of the spouse or parent the full value of the life of the decedent, as shown by the evidence.”(1) There is no statute, or other law, in this state which would allow an unmarried individual to recover for the death of his or her significant other, no matter the extent of the relationship between those two unmarried individuals, unless of course one is the child of the other.
Another potential source of damages only available to a married individual is the claim for loss of consortium. Consortium was [a]t earlier common law, the status and rights of the husband arising from the marriage relationship, while ‘coverture’ denoted the status and rights of the wife arising therefrom. But ‘consortium’ has now come to mean the rights and duties of both husband and wife, resulting from the marriage, in other words, the marital rights and duties of the spouses inter se, the reciprocal rights and duties of society, companionship, love, affection, aid, services, cooperation, sexual relations, and comfort, such being special rights and duties growing out of the marriage covenants. W.J. Bremer Co. v. Graham (2) (emphasis in original) (citations omitted). As is apparent from the emphasized phrases in the above Georgia case law concerning the remedy of loss of consortium, the claim is explicitly derived from a marital relationship. It is none other than a claim to be made by one spouse for damages associated with the other spouse. It necessarily follows, then, that, in order to make a claim for loss of consortium, there must be a valid marital relationship, as the same is the very basis of this theory of recovery. There is no case law, or other legal support in Georgia, which would permit an unmarried individual to recover under a claim of loss of consortium for losses associated with his or her significant other, no matter the extent of the relationship.
Obergefell v. Hodges
The fact that the above-mentioned remedies are only available to married individuals makes it necessary for personal injury attorneys to understand what exactly defines a married person in this state. Prior to 2015, members of a same-sex couple in Georgia would have no standing under the state’s wrongful death statute, nor would they have a viable claim for loss of consortium in any personal injury case. However, after the landmark holding of Obergefell, 135 U.S. 2584, has all that changed, and if so, what should Georgia attorneys expect?
The Due Process Clause of the Fourteenth Amendment of the United States Constitution provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” Several years ago, the United States Supreme Court held that the right to marry is protected by the Constitution as “one of the vital personal rights essential to the orderly pursuit of happiness by free men.”(3) Many later decisions have confirmed that the right to marry is a fundamental right. However, it was not until Obergefell, 135 U.S. 2584, that the Court held that same-sex couples had a fundamental right to marry.
Specifically, the Supreme Court, in Obergefell, held that “[t]he right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clause of the Fourteenth Amendment couples of the same sex may not be deprived of that right and that liberty.”(4) Thus, the holding in Obergefell mandates that it is unconstitutional for a state to bar same-sex couples from marrying.(5) In addition, after the entry of Obergefell, it is unconstitutional for a state to refuse to recognize a lawful same-sex marriage performed in another state.(6)
What does this mean for same-sex couples in Georgia? Similar to the states referenced in Obergefell, 135 U.S. 2584, Georgia has defined marriage as between one man and one woman. “It is declared to be the public policy of this state to recognize the union only of man and woman. Marriages between persons of the same sex are prohibited in this state.”(7) Georgia also has historically refused to recognize same-sex marriages entered into lawfully in other states. “No marriage between persons of the same sex shall be recognized as entitled to the benefits of marriage. Any marriage entered into by persons of the same sex pursuant to a marriage license issued by another state or foreign jurisdiction or otherwise shall be void in this state…”(8)
Post-Obergefell, 135 U.S. 2584, these Georgia statues are effectively overruled. This state, like every other state in this country, must allow same-sex couples to marry, and it must recognize same-sex marriages legally entered into in other states. What this means is that there is an entire new class of potential plaintiffs in personal injury cases—married gay persons—and this includes those individuals who legally entered into a same-sex marriage in another state but now reside in Georgia. These persons now, under the mandate of the United States Supreme Court, have the same rights as any other legally married individual, including the right to sue a defendant in a personal injury case for losses associated with his or her spouse.
What Does this Mean for Gay Married Plaintiffs Post-Obergefell?
The answer is quite simple. Now that gay persons may legally marry, once they are married, they have the exact same options available to them as do similarly situated heterosexual married individuals when it comes to seeking recovery in a personal injury case involving injuries associated with one’s spouse.
Thus, a spouse in a same-sex marriage may claim losses under a wrongful death statute in Georgia post-Obergefell, 135 U.S. 2584, as he or she will now fall under the definition of “spouse” as used in O.C.G.A. 51-4-2(a). Similarly, a gay married individual may bring a claim for loss of consortium in Georgia post-Obergefell, 135 U.S. 2584 for the same reason. These two theories of recovery are just but examples of the expanded recovery now available to members of married, same-sex couples in personal injury cases for losses occurring to their spouses. In reality, the recognition of same-sex marriage in this state will likely lead to a ripple effect of increasing methods of recovery of damages in personal injury cases for married individuals.
The impact is clear, and it is expansive. Prior to the legalization of same-sex marriage, and specifically the recognition of same-sex marriage in Georgia, gay persons who were involved in committed, romantic same-sex relationships, no matter the length or extent of such relationship, did not have the same rights as similarly situated legally married individuals. In particular, unmarried plaintiffs involved in same-sex relationships did not have the right to seek losses or other damages for injuries occurring to their significant other; whereas, post-Obergefell, 135 U.S. 2584, those same plaintiffs, assuming they have exercised their right to legally marry in this or any other state, are able to recover damages for injuries occurring to their spouse.
What About Jury Bias?
Even though, post-Obergefell, 135 U.S. 2584, persons involved in same-sex marriages now have the legal right to bring claims associated with their spouses in personal injury actions, this does not guarantee that those who exercise this right will receive an adequate award of damages when compared to those damages awarded to an opposite-sex spouse making a similar claim. One such reason for a discrepancy in damage awards in personal injury actions brought under the wrongful death statute, for example, is the potential for jury bias against a gay plaintiff, and specifically, the potential that a jury may be comprised of persons who do not support the legalization or recognition of same-sex marriage. Of course, the opposite may also be true—jury bias could possibly work in favor of a plaintiff involved in a same-sex marriage.
Having established that your client has standing to bring the claim in question, the question then becomes, how can you, as a plaintiff’s attorney, increase the likelihood that jury bias will not be a factor contributing to a less than adequate award of damages for your client? In cases where the plaintiff is a spouse involved in a same-sex marriage, effective voir dire is essential. To indirectly gauge a potential juror’s opinion on same-sex marriage, consider asking questions regarding a person’s religious background. Many people who are in opposition to same-sex marriage base such opposition on religious reasons or the First Amendment of the United States Constitution. In addition, a juror who has a friend or family member involved in a same-sex relationship may be more sympathetic to your client than would a juror who has no personal ties, or other exposure, to a same-sex couple.
Overall, jurors who are open-minded, rather than focused on the fact that your client is or was involved in a same-sex marriage, might be more likely to award damages based on the merits of the case, rather than on the sexual orientation of the parties.
Along the same lines as implementing effective voir dire, an attorney representing a same-sex spouse in these types of cases must be aware of how the presentation of the case may impact those jurors who may have an implicit, although perhaps not voiced, bias against same-sex marriage. For example, too much of an emphasis on the sexual orientation of the parties may distract jurors from the ultimate issues in the case. As in any personal injury case, the focus should be on the claims presented, the defenses thereto, and the request for damages. If a plaintiff’s case if argued effectively, and his or her arguments persuasively made, the sexual orientation of that plaintiff should not matter. The bottom line is that, post-Obergefell, 135 U.S. 2584, a same-sex married individual no longer needs to argue that he or she has the right to bring a claim under the wrongful death statute in Georgia, nor that he or she may make a claim for loss of consortium, in regards to his or her spouse. Thus, the emphasis, in any personal injury case, regardless of the plaintiff’s sexual orientation, should be the merits of the case, rather than the fact that the plaintiff may be involved in a same-sex marriage in comparison to a marriage between persons of the opposite sex.
However, in certain cases, jury bias may be a potential positive contributor toward a same-sex married plaintiff’s damage award. For instance, if the jury is comprised of predominately gay individuals, or if the jury foreperson happens to be gay, the jurors may be more sympathetic to a plaintiff who is a member of a same-sex couple, as said jurors are more likely to associate with the long struggle faced by gays in achieving equality when it comes to the right to marry. In these cases, it may be beneficial to put more emphasis on the fact that a same-sex marriage exists in order to engage the jury and capitalize on jury sympathy towards a plaintiff who is a spouse of a same-sex marriage.
In any case, jury bias has the potential to work both ways, depending on the members of the jury and specifically the foreperson of the jury. Therefore, now, perhaps more than ever, the use of a jury consultant and the surveying of potential jurors as well as the landscape of the jurisdiction, already crucial in every jury trial, is even more important in cases involving a same-sex marriage. Jury consultants may have their work cut out for them as to advising lawyers on how to treat the issue of same-sex marriage before jurors and in particular jurisdictions. While that issue is beyond the scope of this article, it is important to point out that personal injury attorneys must consider, in any case involving same-sex marriage, how the jury may react to a particular plaintiff or a particular defendant.
In short, it is not the law that has changed, but rather the pool of potential plaintiffs who may have a right to recover in a personal injury action, as well as the extent of damages possibly available in any given personal injury claim. It is thus important for all personal injury attorneys, both plaintiff and defense attorneys, to consider the extent to which the recognition of same-sex marriage in Georgia has changed the damages available in personal injury cases in light of Obergefell, 135 U.S. 2584. In addition, those attorneys representing a married, gay plaintiff in an action seeking damages associated with that person’s spouse, via the wrongful death statute, a claim for loss of consortium, or otherwise, must be cognizant of the potential impact that jury bias relating to the existence of a same-sex relationship may have on his or her client’s case.
About the Authors
Randy Kessler and Stefanie Potter are both members of Kessler & Solomiany LLC, a 12-attorney family law firm located in Atlanta, Georgia. Mr. Kessler, the founding partner of Kessler & Solomiany, is also the former chair of the family law section of both the State Bar of Georgia and the American Bar Association. Mr. Kessler has authored many publications in the area of family law. Ms. Potter is an associate at Kessler & Solomiany, where her practice focuses exclusively in the area of family law. Prior to joining Kessler & Solomiany in September 2016, Ms. Potter practiced family law in Louisville, Kentucky.