The state’s highest court ruled last Thursday that marriage benefits for gay couples can’t be applied retroactively to the time before same-sex marriage was legalized — a ruling affirming a bright line between marriage and other long-term relationships.
The Supreme Judicial Court (SJC) issued the ruling as part of a malpractice case brought by Cynthia Kalish and Michelle Charron, who was diagnosed with breast cancer a year before the couple married in 2004.
Charron sued her doctors for malpractice, saying they should have ordered a biopsy earlier. As part of the case, Kalish also sued for loss of marital companionship. Charron died in 2006.
The lawyer for Charron’s doctors contested the claim of loss of companionship, saying the couple was not legally married when Charron was diagnosed with breast cancer. Kalish and the couple’s daughter claimed the couple would have been married if same-sex marriage had been allowed by law at the time.
The court rejected the claim that the benefit should be retroactive, saying it would open up a legal Pandora’s box by allowing other couples — gay or straight — in long-term relationships to also claim marriage rights.
The court also said it would weaken the legal authority of marriage, one of the tenets of the 2003 gay marriage ruling, known as the Goodridge case.
In a written statement, Kalish said she was saddened that the court “has denied me and my family the same rights as other married couples.”
The couple said they’d done everything they could to build a family before same-sex marriage became legal — including exchanging rings, sharing household expenses, and creating wills, and health care proxies and life insurance policies naming each other as beneficiaries.
Using an anonymous donor, Kalish also conceived a child, born in 1998, who was jointly adopted by Kalish and Charron.
The couple applied for a marriage license on the first day the state permitted it, May 17, 2004, and were married three years later.
But in its ruling, the court noted that previous attempts to establish legal marital rights for unmarried couples have been rejected. The fact that Kalish and Charron were legally barred from marrying until 2004 didn’t override those precedents, the court said.
The court also pointed out that the ruling establishing the right to gay marriage included a list of benefits only eligible for married couples — including the claim of the loss of companionship.
The unique legal status of marriage, and the benefits only granted to married couples, was one of the arguments for those pushing gay marriage rights.
“However sympathetic we may be to the discriminatory effects the marriage licensing statute had before our Goodridge decision,” the court reported, “to allow Kalish to recover for a loss of consortium if she can prove she would have been married ... could open numbers of cases in all areas of law to the same argument.”
Chief Justice Margaret Marshall agreed with the decision, but called the case “a vivid reminder of the constitutional mandate of equality under the law, and the costs imposed when society falls short of that mandate.”
Kathy Jo Cook, the lawyer representing the couple, said she was disappointed.
“We’re saddened that the SJC refused to extend the basic protection of marriage to this same-sex couple and their daughter,” Cook said.
Arline Isaacson, co-chair of the Massachusetts Gay and Lesbian Political Caucus, called the ruling an injustice.
“... It sounds like this couple is being punished because of the prejudice of the state, not their own inaction or lack of desire to get married,” Isaacson said.