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Monday, August 22, 2011

Ind. Law - The state fair stage collapse and the rights of gay couples

A number of news stories indicate that at least one gay couple was severely impacted by the state fair stage collapse. It is unclear from what I've seen whether the couple had indeed married, or entered into a civil union, in another state. Hawaii has been mentioned.

Regardless, Indiana currently does not recognize same sex marriages performed either here or elsewhere -- our defense of marriage statute (DOMA), IC 31-11-1-1, provides:

Sec. 1. (a) Only a female may marry a male. Only a male may marry a female.

(b) A marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized.

As added by P.L.1-1997, SEC.3. Amended by P.L.198-1997, SEC.1.

The federal DOMA was enacted in 1996:
Section 2. Powers reserved to the states

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Section 3. Definition of marriage

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.

Efforts continue to repeal the federal DOMA act, see for instance this July 19, 2011 story in the Christian Science Monitor.

There are no similar efforts underway to repeal the Indiana DOMA.

Instead, a constitutional amendment, HJR 6, intended to reinforce the Indiana statute's prohibitions, passed the 2011 session of the General Assembly. If it passes again in 2013 (it must pass two separately elected General Assemblies), the proposed constitutional amendment will be presented to the voters for ratification at the next general election. It reads:

SECTION 2. ARTICLE 1 OF THE CONSTITUTION OF THE STATE OF INDIANA IS AMENDED BY ADDING A NEW SECTION TO READ AS FOLLOWS:

Section 38. Only a marriage between one (1) man and one (1) woman shall be valid or recognized as a marriage in Indiana.

A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.

The stated rationale of those supporting the constitutional amendment was to prevent a state court from finding a way to invalidate the Indiana DOMA statute on state constitutional grounds.

The second sentence of the proposed amendment was contested by a number of people during the past session, on the grounds that it would prevent recognition of domestic partnerships and perhaps a number of other legal arrangements intended to benefit same sex families. If the amendment were to be ratified, it was argued that any future statutes intended to provide such benefits would be constitutionally invalid. In other words, future General Assemblies would find their hands tied ...

Wrongful Death Actions. Indiana's wrongful death law is found at IC 34-23-1.

Section 1 provides that:

When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained an action had he or she, as the case may be, lived, against the latter for an injury for the same act or omission.
Damages shall include reasonable medical, hospital, funeral and burial expenses, and lost earnings of such deceased person resulting from said wrongful act or omission. the remainder, if any, after expenses, shall:
inure to the exclusive benefit of the widow or widower, as the case may be, and to the dependent children, if any, or dependent next of kin, to be distributed in the same manner as the personal property of the deceased.

If such decedent depart this life leaving no such widow or widower, or dependent children or dependent next of kin, surviving her or him, the damages inure to the exclusive benefit of the person or persons furnishing necessary and reasonable hospitalization or hospital services in connection with the last illness or injury of the decedent, performing necessary and reasonable medical or surgical services in connection with the last illness or injury of the decedent, to a funeral director or funeral home for the necessary and reasonable funeral and burial expenses, and to the personal representative, as such, for the necessary and reasonable costs and expenses of administering the estate and prosecuting or compromising the action, including a reasonable attorney's fee, and in case of a death under such circumstances, and when such decedent leaves no such widow, widower, or dependent children, or dependent next of kin, surviving him or her, the measure of damages to be recovered shall be the total of the necessary and reasonable value of such hospitalization or hospital service, medical and surgical services, such funeral expenses, and such costs and expenses of administration, including attorney fees.

Section 2 covers an adult unmarried person without dependents:
(d) Damages awarded ... for medical, hospital, funeral, and burial expenses inure to the exclusive benefit of the adult person's estate for the payment of the expenses. The remainder of the damages inure to the exclusive benefit of a nondependent parent or nondependent child of the adult person.
(f) A parent or child who wishes to recover damages under this section has the burden of proving that the parent or child had a genuine, substantial, and ongoing relationship with the adult person before the parent or child may recover damages.
(g) In an action brought under this section, a court or a jury may not hear evidence concerning the lost earnings of the adult person that occur as a result of the wrongful act or omission.
Other States. Five states and the DC recognize same-sex marriage. Nolo Law has a discussion of "Marriage-Like Relationships in Other States":
California, New Jersey, Nevada, Oregon, and Washington state offer either civil unions or domestic partnerships that are the legal equivalent of marriage in the states that offer them and provide the same rights and responsibilities as marriage, including:
  • rights under family laws, such as annulment, divorce, child custody, child support, alimony, domestic violence, adoption, and property division
  • rights to sue for wrongful death, loss of consortium, and under any other tort or law concerning spousal relationships
  • medical rights, such as hospital visitation, notification, and durable power of attorney
  • family leave benefits
  • joint state tax filing, and
  • property inheritance when one partner dies without a will.
The Hawaii legislature has also passed a civil union law that will take effect January 1, 2012. In addition, the Illinois legislature passed a civil union bill that create a marriage-like relationship, which will take effect June 1, 2011.

These rights apply only to couples living in those states who enter into a civil union. But the laws do not give same-sex couples any rights and benefits under federal law. Same-sex couples are not eligible for Social Security benefits, immigration privileges, or the marriage exemption to federal estate, transfer, or gift taxes. * * *

Reciprocal beneficiaries laws in Colorado and Hawaii provide some marriage-like benefits. In Hawaii, any two state residents can register as reciprocal beneficiaries, as long as they are over 18 and are not permitted to marry. Couples who sign up gain some of the rights and benefits granted by the state to married couples, including hospital visitation rights, the ability to sue for wrongful death, and property and inheritance rights. In Colorado, reciprocal beneficiaries may own property jointly, inherit from a partner in the absence of a will, receive priority for appointment as a conservator, and receive a number of other rights similar to those of married couples, though the list is far from complete.

Here is more (from Wikipedia) on reciprocal beneficiary registration in Hawaii:
Since 1997, the U.S. state of Hawaii has offered reciprocal beneficiary registration for any adults who are prohibited by state law from marrying, including both same-sex and opposite-sex couples.

Reciprocal beneficiaries have access to a limited number of rights and benefits on the state level, including inheritance rights, workers compensation, the right to sue for wrongful death, health insurance and pension benefits for state employees, hospital visitation, and healthcare decisionmaking. Hawaii's RBR status also offers partners the option to jointly own property as "Tenants by the Entirety."

There are no state residency or U.S. citizenship requirements. The two individuals entering into a reciprocal beneficiary relationship must both be at least 18 years of age, and cannot be married or in another reciprocal beneficiary relationship.

Individuals prohibited by state law from marrying one another include, but are not limited to, relationships such as brother and sister of the half as well as to the whole blood, uncle and niece, aunt and nephew, widowed mother and her unmarried son, and two persons of the same sex or gender.

Hawaii does not recognize same-sex marriage. Although it has recognized reciprocal beneficiary agreements for more than 10 years, another Wikipedia entry traces recognition of same-sex unions in Hawaii:
The U.S. state of Hawaii currently recognizes same-sex couples in reciprocal beneficiary relationships, which provide limited rights and benefits. Civil unions that provide benefits similar to marriage were legalized in 2011, and will become available in 2012. Same-sex marriage is banned by state law.

Following a 1993 decision by the Hawaii State Supreme Court that found the state's refusal to grant same-sex couples marriage licenses discriminatory, voters in 1998 approved a constitutional amendment granting the Hawaii State Legislature the power to reserve marriage to opposite-sex couples, which it later did by passing a law that banned same-sex marriage.

Posted by Marcia Oddi on August 22, 2011 08:52 PM
Posted to Indiana Law | Stage Collapse