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Court: Gay Marriage Not Retroactive

In the wake of the Supreme Judicial Court's 2003 decision legalizing gay marriage in Massachusetts, Goodridge v. Department of Public Health, on the very first day that the state allowed same-sex couples to apply for marriage licenses, Cynthia Kalish and Michelle Charron were there. Three days later, on May 20, 2004, they married. By then, they had already lived together for a dozen years, had exchanged rings a decade earlier and jointly adopted a child.

But in December 2002, two years before the couple married, Charron sought treatment for a lump in her breast, and in July, 2003, she was diagnosed with breast cancer. Out of her treatment came litigation for medical malpractice and a claim by Kalish for loss of consortium. Because the couple had not been married when the loss-of-consortium claim accrued, the trial judge granted summary judgment dismissing it. The women appealed to the SJC.

Their argument was that they would have been married, but for the unconstitutional state of the law. The Goodridge decision, they contended, should be applied to extend the consortium claim retroactively to when their marriage would have occurred. But in a decision issued today, Charron v. Amaral, the SJC rejected their argument.

Kalish contends that because the denial of the right of same-sex couples to marry violated the Massachusetts Constitution, all the laws that required (exclusively opposite sex) marriage as a prerequisite to certain rights were derivatively unconstitutional. We need not analyze this assertion because, in any event, it does not aid her position. As Goodridge recognized, where a change in law is so radical that the consequences of that change realistically require time for the Legislature to act, a court may make the remedy for unconstitutional laws prospective only. ... It is obvious that Goodridge was intended to apply prospectively; thus, it is not necessary for us to address Kalish's contention that we should apply Goodridge retroactively.

To accept the plaintiffs' "but-for" argument, the court added, "could open numbers of cases in all areas of law to the same argument."

Posted by Robert J. Ambrogi on July 10, 2008 at 01:28 PM | Permalink | Comments (0)


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