Some 37 states either enacted statutes banning same-sex marriage and/or amended state constitutions to ban it. Such is the inequality of same-sex marriage.
By Joyce Kauffman (Massachusetts)
Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In return it imposes weighty legal, financial, and social obligations. The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.
Goodridge v. Department of Public Health, 440 Mass. 309, 312 (2003).
Much – and little – has changed since Goodridge was decided in 2003. Five additional states and the District of Columbia have approved same-sex marriage. Delaware, Hawaii, New Jersey, Illinois, and Rhode Island have enacted Civil Unions; California, Nevada, Oregon, and Washington have enacted Domestic Partnerships. These Civil Unions and Domestic Partners grant same-sex couple all of the rights, privileges, and obligations of marriage (absent the title). Colorado, Maine, Maryland, and Wisconsin have enacted limited Domestic Partnerships, granting some, but not all of the rights of marriage, to same-sex couples. California (in some cases), New Jersey, Maryland, and Rhode Island will recognize same-sex marriages entered into in another jurisdiction.
While this is very good news for same-sex couples and signals an enormous sea-change in public opinion, it is sobering to realize that not only is the federal Defense of Marriage Act (DOMA), signed into law by then President Bill Clinton in 1996, still the law of the land, some thirty-seven states have either enacted statutes banning same-sex marriage and/or amended their state constitutions to ban same-sex marriage (so-called “mini-DOMAs”). Only ten states in the United States have no law limiting or banning same-sex marriage.
The existence of DOMA and the mini-DOMAs prevents same-sex married couples from achieving true equality. None of the 1,138 federal rights available to heterosexual married couples, and none of the state rights in non-recognition states, are available to same-sex married couples. This article prevents but a brief overview of the complexity of these legal challenges.
Parentage: while there is a presumption of parentage of children born to same-sex married couples, the parentage of the non-biological parent is unlikely to be respected in a DOMA state or by the federal government. This, of course, leaves these children extremely vulnerable: the dissolution of the relationship may cause the biological parent to flee to an unfriendly jurisdiction in an attempt to prevent the non-biological parent from asserting parental rights; the death of the non-biological parent may render the child ineligible for certain federal benefits; the hospitalization of the child in a DOMA state may result in the non-biological parent being unable to visit or make medical decisions. It is therefore imperative for same-sex married couples to adopt their own children in order to obtain an adoption judgment that is unassailable in other states and by the federal government.
Divorce: when same-sex marriage became legal in Massachusetts, this author opined that one of the best things about marriage was divorce. Prior to the advent of same-sex marriage, couples who were ending their relationship had very little, if any, legal framework within which to negotiate or determine their rights with respect to custody and parentage or the division of assets and liabilities. Couples might never have organized their financial affairs in a way to protect one another; often one person would be the ‘owner’ of property; and frequently children did not have the protection of having two legal parents. Equitable remedies might be available to address parentage or asset division under certain circumstances but were likely to be costly and difficult to litigate.
Access to divorce has changed this dramatically but also presents numerous challenges. None of the tax advantages available to heterosexual divorcing couples are available to same-sex couples: transfers between spouses are taxable events; since most retirement plans are governed by federal law, no Qualified Domestic Relations Orders are available and retirement plans may need to be cashed out, evoking the attendant penalty and tax costs; and alimony will not be treated by the IRS as it would for heterosexuals.
In many, if not most, jurisdictions, the length of the marriage is a threshold question in considering an appropriate division of assets. Query what is the length of the marriage for a same-sex couple who have been together for twenty years but only married for two? See Hickson v. Hickson, 75 Mass.App.Ct. 1104 (2009); Londergan v. Carrillo, 74 Mass.App.Ct. 1126 (2009). And finally, parentage may also present a challenge where children were born prior to a marriage and never adopted by the non-legal parent.
Portability: In addition to the questionable portability of legal parentage of children born into same-sex marriages mentioned above, an equally troubling issue is not only the lack of recognition of same-sex marriages but also the unavailability of divorce. In this mobile society, where people frequently move from one jurisdiction to another and where people marry in one jurisdiction while residing in another, the lack of recognition of these marital relationships is a serious problem. If a couple moves to or resides in a non-recognition state, there will simply be no recognition of their marital relationship on either a state or federal level. This has not only an emotional impact on a couple, but a practical impact as well. For example, no employment benefits (such as the ability to obtain health insurance through a space) will be available; the ability to visit a hospitalized spouse will be unavailable; and the ability to a spousal share of a deceased spouse’s estate – or even the ability to control the burial arrangements – will be unavailable.
But perhaps most serious is the reality that many of these couples living in non-recognition jurisdictions will be absolutely unable to divorce. The challenge to individuals who find themselves in this predicament is daunting: unless at least one party is residing in a recognition state, there is no way to undo the legal relationship; there may be no way to determine a division of assets, custody or support issues; there could be dire financial consequences if, for example, all the marital debt is in one party’s name. The list goes on and on. And even though the legal relationship may not be recognized now, it is possible that down the line the law will change. Individuals who simply move on and re-marry will be in bigamous relationships. Only one jurisdiction has addressed this; California allows registered domestic partners who do not reside in California to dissolve the partnership in California, provided they have no children and own no real property.
As Justice Margaret Marshall eloquently stated in Goodridge:
Barred access to the protections, benefits, and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community’s most rewarding and cherished institutions. That exclusion is incompatible with the constitutional principles of respect for individual autonomy and equality under law.
Joyce Kauffman is a graduate of Northeastern University School of Law and was admitted to the Massachusetts Bar in December 1992 and is also a trained Mediator and Collaborative Lawyer. She holds a Master’s degree in Counseling Psychology from Lesley College (now Lesley University) and a Bachelor’s degree in Child Development from the University of Massachusetts/Amherst. Attorney Kauffman has been an activist for alternative families since the early 1970s. She was a founding member of the Somerville Women’s Center in 1976 and of the Cambridge Lavender Alliance/Parents, Teachers, and Allies in the early 1990s, and she is a frequent speaker and commentator on family law issues.
 Maine enacted marriage in 2009, only to have it overturned by voter referendum later in the same year.
 Attorney General Eric Holder announced in February of 2011 that the Department of Justice would no longer defend DOMA, having determined that the law is unconstitutional.
 The same would be true of children born to a Civil Union or Domestic Partnership in states where these statuses are the same as marriage.
 Second parent or co-parent adoption is not available in a majority of states, but is generally available in the states that recognize marriage, civil union, and domestic partnership, as well as some others.