July 11, 2008
Mass. Supreme Court says Goodridge does not apply Retroactively to Recognize Benefits of Marriage
The Supreme Court of Massachusetts ruled yesterday that the Goodridge decision (striking down same sex marriage prohibitions as unconstitutional) does not apply retroactively to permit courts to give couples the recognition of marriage. Charron v. Amaral, 2008 WL 2672967 (Mass. July 10, 2008). The case began when one member of a loving relationship developed breast cancer. Her partner brought the claim for loss of consortium stemming from medical malpractice.
In Charron, the Supreme Court was called upon to decide whether a same sex couple could benefit from "marital rights recognized by Goodridge, including the loss of a spousal consortium, . . . retroactively" if the couple "can demonstrate that they would have been married when the cause of action for personal injuries on behalf of one of them accrued had the Commonwealth recognized such a union?" Id. at *1.
The answer? No. The court emphatically states that "[i]t is obvious that Goodridge was intended to apply prospectively . . . ." Id. at *4.
In a concurring opinion, Chief Justice Marshall takes issue with the characterization of Goodridge as a "prospective" decision. In fact, it was a delayed decision--meant to give "deference" to the legislative branch, rather than a prospective decision as the majority claims. Id. at *5 (Marshall, C.J., concurring). The more interesting part of the concurring opinion stems from Marshall's discussion of the policy reasons for prohibiting the requested relief. "Granting such relief would create in effect a common-law or de facto quasi marital status that would promote litigation, permit judges to select from among marital benefits to which quasi marital couples might or might not be entitled, create uncertainty in the private as well as the public sphere about who is (or was) quasi married and for what purpose, and undercut the Legislature's role in defining the qualifications and characteristics of civil marriage." Id. at *6 (Marshall, C.J., concurring).
This argument is rather interesting for two reasons:
(1) Don't judges make these kinds of determinations all the time? For instance, in common law marriage states, judges look to factors (such as whether the couple lived as a married couple) to determine whether or not they are legally married despite the fact that they never filed for a marriage license.
(2) Would this really create a problem prospectively? The plaintiffs asked for the court to recognize a "marriage" retroactively under the new marital laws of Massachusetts because they could not marry in the past. In fact, the couple applied for (and received) a marriage license when they could do so. Would this really create problems for other types of relationships? Or would it simply recognize the fact that this loving couple was for all purposes (other than for state recognition) married all along?
Granted, in any case, permitting the claim would raise separation of powers issues. As the concurring Justices point out, the court did not create same sex marriage rights in Goodridge. That job was left to the Legislature. Hence, I do agree with the last part of the quote above--recognizing this relationship could "undercut the Legislature's role in defining the qualifications and characteristics of marriage." Id. at *6.
July 8, 2008
New Research on DADT
In the wake of the 9th Circuit Witt decision (subjecting DADT to intermediate scrutiny), the Palm Center has recently published numerous pieces of research about DADT.
In one article, the Palm Center points out that "52 Retired Generals and Admirals Call for Repeal." In another report, the Center exposes the fact that "Senior Military Leaders" support an end of the ban.
It remains to be seen how the lower court will handle the Witt decision on remand.