Gay Marriage and the Fight for Retroactive Equality
With more and more gay marriage court cases finding that gay marriage bans are unconstitutional, a new case has prompted one state court to ask whether married gay couples should be able to access certain marriage benefits retroactively.
The case in question, Mueller v. Tepler et al., is at heart a medical malpractice claim. It involved lesbian couple Margaret Mueller and Charlotte Stacey who in 2006 sued two doctors who had diagnosed and treated Mueller for ovarian cancer when, in fact, she had cancer of the appendix which, during the years of chemotherapy she had to endure, spread into other areas of her body. Ultimately, a Stamford Superior Court jury awarded $2.45million to Mueller’s estate because, by that time, she had died.
While obviously distressing, this case would not have been particularly compelling for the marriage equality fight except for the fact that Mueller and Stacey had been denied the right to sue on a consortium claim. This is a claim where the parties argue that they have been denied the benefits of a family relationship due to an injury or negligence of some kind.
The defendants in the case argued, and the court agreed, that the couple had no legal union at the time of the injury and therefore no consortium claim could be established. While it is true that Mueller and Stacey had not been able to marry at the time, they had however secured a civil union in 2005, and by 2008 had married in Massachusetts. They counterclaimed that had marriage have been open to them at the time when Mueller suffered the consequences of the misdiagnosis, they would have done so, and their over 20 years together showed that. As such, they argued, denying on the consortium claim on that basis was unfair–and, after many years of struggling in the appellate courts, and now without her partner, Stacey has prevailed.
Connecticut’s Supreme Court ruled unanimously(.pdf) on Wednesday, June 16, that the appellate courts got it wrong and that if Stacey amends her claim “that she and Mueller would have been married or in a civil union when the underlying tort occurred if they had not been barred from doing so under the laws of this state, the trial court must deny the defendants’ motion to strike her loss of consortium claims,” or, in essence, the finding baring her from a consortium claim is now stricken and Stacey can proceed.
Legal analysts have seized on this ruling as evidence that same-sex couples may now have a means to sue for rights they were denied due to same-sex marriage bans.
John Thomas, a professor at the Quinnipiac University School of Law, tells the AP that he thinks this ruling may prompt similar appeals in other states where gay marriage is now legal (that’s 19 states, though all with varying degrees of enforcement), saying, “I think what the court recognized is that constitutional rights don’t spring into existence in one moment of time.”
The ruling appears to at least partly hinge on the fact that, even though the state Supreme Court did not allow for same-sex marriages to apply retroactively when it struck the state’s marriage equality ban in 2008, it did open common law to give same-sex partners the right to sue should a spouse be killed. Other states have similar provisions, whether via court rulings or as part of legislatures opening marriage rights to same-sex couples.
However, it’s important to stress that the Connecticut Supreme Court did not leave this ruling unqualified, adding the following:
“As this court did in Hopson, however, we emphasize that persons in Stacey’s position, i.e., those who were barred from marrying when the underlying tortious conduct occurred, may not maintain a loss of consortium claim arising from such conduct when the injured person’s ‘claim for physical injuries has been concluded by judgement or settlement or the running of [the statute of] limitations’ before the date that this opinion is officially released.”
This would appear to mean that if other claims have already been settled, this ruling itself cannot be retroactively applied and therefore resolved cases cannot be reopened on the strength of this ruling alone.
Nevertheless, advocates say this represents an important step in securing the right to have some marriage benefits recovered that were denied as a result of state level same-sex marriage bans and the federal Defense of Marriage Act. In fact, that discussion is already underway thanks to last year’s Windosr ruling which struck down Section 3 of the federal marriage ban, with various analysts looking into whether same-sex couples should be given certain tax and employee benefits that, had the government recognized their marriages, they would have been receiving upon commencement of their marriages.
Of course, not all these rights can apply retroactively. Despite the Religious Right’s dire warnings, no court will ever decide that state or federal governments should begin paying out to same-sex couples all of the benefits they were denied–it would simply be too cumbersome and costly. Realistically, same-sex married couples would only find relief for very particular hardships and problems, and most likely those that continue to cause injury today where there is scope for a nuanced approach to answering that problem.
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