At issue in this case is Florida’s loss of consortium law (common, not statutory) which currently provides that only married spouses can claim this tort remedy.
Briefly, loss of consortium is the derivative action that one spouse can bring against a tortfeasor (i.e., the imbecile who caused the accident) for the loss of the injured spouse's services, such as household assistance, love, affection, comfort, and sexual intimacy.
In the Bashaway case, Judith Bashaway and Melinda Garrison were life long, same sex partners. The two exchanged vows in 1993 and lived together exactly as a married couple would, owning their home, other real property and their vehicles jointly.
In September 2006, Ms. Garrison was severely injured in an automobile accident and suffered life-threatening injuries.
The personal injury suit subsequently filed by Ms. Garrison also included a count brought by Ms. Bashaway for loss of consortium. Defendants’ motion to dismiss this count of the complaint was granted, with prejudice, as Florida law does not recognize non-married consortium claims.
The appellate argument here sounds simple enough. This is a straight up equal protection case. Meaning, married couples should not enjoy the benefit of a consortium claim at the exclusion of non-married couples. Why should those who have been in a committed relationship for years not get the same benefit as the couple who met one night and decided to get married Vegas style one week later? If one spouse in this latter scenario should suffer injuries in an accident the next day on his or her way to the court to file annulment papers, then, you guessed it, the other spouse gets the consortium claim. Doesn’t make sense, does it?
Apart from the hypothetical rub above, Bashaway is unique as it involves a claim of a same-sex couple who are precluded by law from EVER marrying. Where is the fairness in this? That’s why, as part of the appeal, Judith Bashaway will be asking the court, alternatively, if it is unwilling to extend the law to include non-married couples, then to at least carve out an exception to allow same sex couples the opportunity to prove, on a case-by-case basis, their commitment in court whereby they could then plead a loss of consortium claim.
The appellee defendants argue in their briefs that consortium claims for non-married couples should not be granted, as any judicial recognition (activism oh, no!) of these claims would upset stare decisis, “threaten constitutional notions of separation of powers” and, my favorite fear mongering argument, create a flood of litigation:
Under the subjective criteria favored by the Appellant for segregating qualifying relationships from non-qualifying, the courthouse doors would be opened to every conceivable form of opportunist who seeks to capitalize on harm befallen a close confidant. A system rife with such potential for abuse could not be accepted and the requirement of legal marriage or parent-child relation in order to sustain a consortium claim serves as a safeguard against such systemic corruption. (yes, and the locusts would come, the sky would turn red, blah, blah, blah).
As it is difficult to provide a thorough and adequate analysis and summary of the issues raised in Bashaway (I apologize to Appellate counsel Mills & Creed for making a rushed attempt at this), I would be more than happy to email the briefs to anyone who asks. You can also get some additional background information on the legal and personal side of this case here and here.
Similarly, I would recommend anyone interested in hearing and perhaps watching this argument to go to www.1dca.org where you can get a live audio and visual feed, or you can get a recording 24 hours after arguments are over (more like two weeks, given the court's backlog). I just tested the feed on the site's “oral argument video” link and was only able to hear the arguments currently going on in today’s sessions (also at Coastal). According to the disclaimer, video feed is limited, depending on how many people are trying to plug in to watch arguments.
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