Two recent decisions out of the United States Court of Appeals indicate that there may finally be enough legal ammunition to allow the U.S. Supreme Court to finally declare the Defense of Marriage Act, unconstitutional. The Defense of Marriage Act's Section 3 defines that marriage only occurs between a man and a woman. On Thursday, the United States Court of Appeal took a hatchet to this archaic definition by opining that gays and lesbians are members of a special legal class entitling them to additional legal protection.
In May, the First Circuit declared that Section 3 is unconstitutional since the government failed to prove any "rational basis for enacting the law." As a Board Certified Florida Civil Trial Lawyer, I believe that there may finally be enough ammunition to allow the U.S. Supreme Court to void any state's ban of gay marriage as unconstitutional, including Florida.
In the 2nd Court of Appeals majority opinion, authored by Judge Dennis Jacobs, he suggests that the discrimination suffered by gays is similar to that faced by women in the 1970's. In reality, it is much worse. I have represented same sex partners for over twenty years in Florida medical malpractice, wrongful death and personal injury claims. I have seen first hand how unfairly the civil justice system treats same sex partners when compared to legally married heterosexual couples.
For example, if a husband is injured in a Florida car accident, the wife has a right to compensation too. This is referred to as consortium and services. Florida juries are instructed to award an amount of money which the greater weight of the evidence shows will fairly compensate the non-injured spouse for any "by reason of the husband's injury" for services, comfort, society and attentions in the past and future. Same sex partners have no similar legal right.
While it may not seem significant, I have represented same-sex partners that have been in long-term relationships when one is catastrophically injured. The non-injured partner gives up time from work to become a caregiver and loses the support, services and affection of the partner. Failing to recognize this claim deprives many Floridians justice.
Florida's auto insurers also escape liability on a regular basis. Same-sex partners are often not recognized as resident relatives and therefore not covered under the auto policy of the other partner. This potentially deprives the injured partner coverage for medical bills and lost wages when involved in a car accident.
Not too long ago Florida hospitals routinely refused to provide patient visitation, end of life care and funeral arrangements to LGBT partners. Miami's Jackson Memorial Hospital denied access to Lisa Pond by her partner Janice Langbehn and their three children after she suffered an aneurysm on a family vacation. JMH refused to allow the family to see Ms. Pond before she died.
A lawsuit was filed against JMH in the United States Federal Court for the Southern District of Florida. The Court dismissed the case finding that there is no federal law that required the hospital to allow access. Fortunately, in 2010 President Obama ordered all hospitals that receive Medicare and Medicaid to provide equal patient access regardless of sexual orientation.
Will this current focus on human rights be enough to undo Florida's ban on same-sex marriage? I sure hope so. As a Miami personal injury lawyer I think it is absolutely absurd that not all Floridians are entitled to the same legal rights. The civil justice system is supposed to provide an opportunity to everyone to have their day in court, regardless of who they love.
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Lawyers are great wordsmiths and I find interesting the choice of the word *allow* in that statement. It seems to imply that SCOTUS is just waiting for the opportunity and basis to void state bans on gay marriage. So this speculation is based on what indications from the Court?