Does the Constitution provide a right to companionship with one’s spouse? As a federal court in Idaho pointed out last Friday, courts have come up with at least three different answers to this question:
- No. A husband does not have a constitutional right to association with his wife. See Bach's in Niehus v. Liberio, 973 F.2d 526, 534 (7th Cir.1992) (Posner, J.); Norcross v. Town of Hammonton, Civil No. 04-2536 (RBK) (D.N.J. July 13, 2006) (unpublished).
- Yes. “[A] husband or wife should be able to claim violations of his or her own constitutional rights under § 1983 for unlawfully, government-imposed injuries to a spouse that have a devastating impact on their marriage.” Pahle v. Colebrookdale Township, 227 F. Supp. 2d 361, 381 (E.D. Pa. 2002); Brodlic v. City of Lebanon, Case No. 4:04-CV-978 (M.D. Pa. Sept. 15, 2005) (permitting consortium claim under § 1983).
- Maybe. “[T]he death of a family member will not ordinarily give those still alive a cognizable due process claim under section 1983” unless the defendants’ actions were “specifically aimed at ending or affecting [one family member’s] relationship with [another family member].” Soto v Flores, 103 F.3d 1056, 1062 (1st Cir. 1997).
After identifying the three paths taken by the courts mentioned above, the Idaho district court reached the following conclusion,
This analysis shows that courts have at least three different approaches to the issue, and the parties have not cited any binding precedent from the Ninth Circuit or the Supreme Court. Given this disarray in the law over the constitutional issue, there was no "clearly established" constitutional right to the companionship of a spouse at the time Cindy Bach passed away. Accordingly, the defendants have qualified immunity and Bach’s §1983 claim must be dismissed.
Bach v. Idaho State Bd. of Med., Case No. 4:CV 10-548-BLW (D. Idaho Jan. 20, 2012).