Last week, the highest court of Massachusetts ruled that an unmarried partner could not bring an action for loss of consortium, even if the couple married as soon as it was legally possible for them to do so. Charron v. Amaral, 451 Mass. 767, 2008 WL 2672967, involved a lesbian couple who obtained a marriage license on the first day that same-sex marriages were legal in Massachusetts, and married three days later. Less than a year earlier, Michelle Charron had been diagnosed with breast cancer; her partner Cynthia Kalish sued for loss of consortium beginning at the time of diagnosis. The court reaffirmed earlier cases which held that only a person who was a spouse at the time the claim accrued could sue for loss of consortium.
The decision breaks no new ground, and that is the problem. The court unanimously holds the line at marriage, clearly worried about opening the proverbial litigation floodgates to loss of consortium claims by partners who could litigate based on the specific facts of each of their cases, seeking to demonstrate the level of commitment and the emotional bond present in the relationship. That may be sensible, but marriage is not the only way to foreclose windfall damages for suddenly devoted couples tyring to play on the sympathies of a jury. One obvious and workable mechanism would be to limit standing to bring such claims to persons who either were married or who had entered into another binding legal relationship, such as registering as partners with an employer or becoming legal co-parents to a child. GLAD filed an amicus brief pointing out to the court that Massachusetts law did recognize non-marital relationships in a variety of contexts, but the court drew a line at marriage.
The case is interesting because the court once again reverts to a conservative rhetoric of marriage, as it did in many portions of Goodridge, the case which granted same-sex couples the right to marry. The opinion of the court reaffirms language from earlier decisions finding that Massachusetts "has a ‘deep interest’ in upholding the integrity of marriage." Chief Justice Marshall, who wrote Goodridge, concurred in Charron, noting that "the bright line between civil marriage and other forms of relationship … has heretofore been carefully preserved by … our prior decisions, including Goodridge." (emphasis added)
It’s no surprise that Nancy Polikoff, author of Beyond (Straight and Gay) Marriage, blasts the decision, arguing that there is no real reason to worry that roommates will qualify for damages if the cause of action is expanded. I’m less sanguine than Nancy about roommates eschewing opportunist litigation, but I agree that Charron is an opportunity missed.