Tuesday, July 15, 2008


It's a given that the marriage equality movement is about obtaining the choice to marry. Well we've got that choice in Massachusetts, and then last week out comes a case that shows, again, that it's not really a choice at all. Not if we want to protect economic security and emotional peace of mind.

The Massachusetts Supreme Judicial Court decision requiring the state to allow same-sex couples to marry (usually referred to as the Goodridge decision) was an ode to the importance of marriage. So it's no surprise that the judges are more than happy to make the line between the married and the unmarried as bright as can be. Last week, they decided a case in which Cynthia Kalish sought to recover damages for loss of consortium as a result of a medical malpractice claim concerning her partner of over 15 years. Loss of consortium damages are what a can spouse can get to make up for the loss of a spouse's companionship due to another's negligence.

Cynthia and her partner Michele married as soon as they were legally able to do so. But Michele's medical malpractice claim stemmed from before their marriage. So the court had to decide whether, as an unmarried couple -- even one that would have married had it been legally permissible -- Cynthia was eligible for loss of consortium damages. The court ruled she wasn't.

It's not like the loss of consortium action was frozen in time from its creation centuries ago. Used to be only a husband could recover these damages. The Massachusetts court had already extended this cause of action to wives, minor and disabled adult children, and a fetus, later born alive. But the court had also denied recovery to unmarried heterosexual partners, citing the state's "deep interest" in uphold the integrity of marriage.

So it's no surprise that in this case the court reminded us that the many benefits attached only to marriage were part of the reason it had found the ban on same-sex marriage unconstitutional. The court explicitly refused to "erase the bright line between civil marriage and other forms of relationship."

Now I can't say the court would have decided otherwise had it ruled the other way in Goodridge. Probably the outcome would have been the same. But it's the wrong decision. It's not that hard to come up with a test for courts to apply that recognizes when two people living together have relied on each other's love and support to the extent that loss of consortium damages are appropriate. There's really no reason to fear that mere roommates would qualify.

Like so many other legal consequences of marriage, if only the married can get them, what kind of a choice do we really get when we get the right to marry?

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