A License for Same-Sex Marriage

Ripple Effect

The ripple effect will be revealed in jurisdictions other than Massachusetts. Recognition of the legally contracted same-sex marriage under the federal Defense of Marriage Act (USC ch.115, sec. 1738B) does not require any other jurisdiction to recognize a same-sex marriage validly contracted in a sister state. Nevertheless, it may be recognized if the other jurisdiction so chooses. The constitutionality of the federal act is yet to be reviewed by the United States Supreme Court. The result is that there may be a hodgepodge of states scattered throughout the country that may recognize same-sex marriages and others that do not. Same-sex couples can be expected to migrate to those jurisdictions that permit their marriages; and already “married” same-sex couples may move to those jurisdictions that recognize their marriages to obtain or retain spousal benefits.

Impact on Attorneys

For the attorney, a whole new segment of our society will require or desire legal services ordinarily afforded heterosexual couples. The 2000 U.S. Census showed that same-sex “families” exist in more that 99% of the counties in the United States. There will be an enlarged market for prenuptial agreements, post-nuptial agreements, separation agreements, divorces, more adoptions, more estate planning, more Medicaid planning and, in fact, the need for more legal services in every aspect of business and of life that now primarily involves heterosexual married couples.

Evolving Pattern?

Is the Massachusetts decision part of an evolving pattern that is fueled by changing concepts of “family”? The Massachusetts court referred to the California Supreme Court decision in Perez v. Sharp, 32 Cal.2d 711 (1948) and to the United States Supreme Court decision in Loving v. Virginia, 388 U.S. 1, decided 19 years later in 1967 that held that interracial marriages may not be prohibited under the protective umbrella of the due process and equal protection clauses of the Fourteenth Amendment. Fifty years earlier, such decisions relating to interracial marriages could not have been expected. Indeed, at the time of those decisions, it is unlikely that the issue of same-sex marriages would have been considered, let alone protected under the mantle of the Constitution. More and more same-sex couples have “come out of the closet” and have been assimilated in our society and, to a large extent, have become recognized by an increasing segment of our population. Vermont has created its civil union system, and California more recently has enacted a domestic partnership law. Similar legislation has been introduced in 13 other states. Bills to permit same-sex marriages have been introduced in five states, and bills to prohibit same-sex marriages or to prohibit recognition of civil unions or domestic partnerships have been introduced in 10 states. In May, 2003, a bill was introduced in Congress to amend the United States Constitution to prohibit same-sex marriages. The controversy rages.

Conclusion

Perhaps even more important, as sociologic views of what constitutes the “family” continue to develop over the years, the recognition of same-sex marriages may simply be part of a progression in societal life involving the changing concepts of family. If it is, where will that progression lead? It will be interesting to find out.

On November 18, 2003, the Supreme Court of the Commonwealth of Massachusetts, in a divided 4-3 decision, ruled that a city or town clerk may not deny a marriage license to a couple on the grounds that they are not man and woman. Goodridge et al. v. Department of Public Health et al. The basis for the decision of the court is that the Commonwealth may not deny “the protections, benefits, and obligations conferred by civil marriage of two individuals of the same sex who wish to marry” and still comply with the constitutionally safeguarded rights of due process and equal protection. The decision has far-reaching ripple effects that impact upon same-sex couples throughout the country and the attorneys who represent them, and is not limited to the geographical boundaries of the state of Massachusetts.

Immediate Impact

The immediate impact and obvious consequence of the right of same-sex couples to marry is the endowment to them of all of the marital rights (and obligations) of a heterosexual couple who marry. These include, among others: joint income tax return filings; tenancy by the entirety of real property; automatic extension of homestead protection; intestacy rights; rights of election; spousal survivorship rights of retirement and other deferred income plans; classification of a partner as a “dependent”; spousal rights in medical insurance coverage; access to veteran's spousal benefits; protection under housing laws; spousal Social Security benefits; equitable distribution of marital property and the right (and obligation) as to maintenance in the event of a dissolution of the marriage; the right to bring claims for loss of consortium and wrongful death in the event of an accident to a partner; the legitimacy of children brought into the marriage by adoption or medically induced means; rights as to child custody and visitation; legally protected spousal confidences and the protection of a spouse not testifying against the other; preferential rights as guardian of a spouse or a fiduciary of his or her estate; and the myriad of other benefits and obligations of heterosexual spouses.

Ripple Effect

The ripple effect will be revealed in jurisdictions other than Massachusetts. Recognition of the legally contracted same-sex marriage under the federal Defense of Marriage Act (USC ch.115, sec. 1738B) does not require any other jurisdiction to recognize a same-sex marriage validly contracted in a sister state. Nevertheless, it may be recognized if the other jurisdiction so chooses. The constitutionality of the federal act is yet to be reviewed by the United States Supreme Court. The result is that there may be a hodgepodge of states scattered throughout the country that may recognize same-sex marriages and others that do not. Same-sex couples can be expected to migrate to those jurisdictions that permit their marriages; and already “married” same-sex couples may move to those jurisdictions that recognize their marriages to obtain or retain spousal benefits.

Impact on Attorneys

For the attorney, a whole new segment of our society will require or desire legal services ordinarily afforded heterosexual couples. The 2000 U.S. Census showed that same-sex “families” exist in more that 99% of the counties in the United States. There will be an enlarged market for prenuptial agreements, post-nuptial agreements, separation agreements, divorces, more adoptions, more estate planning, more Medicaid planning and, in fact, the need for more legal services in every aspect of business and of life that now primarily involves heterosexual married couples.

Evolving Pattern?

Is the Massachusetts decision part of an evolving pattern that is fueled by changing concepts of “family”? The Massachusetts court referred to the California Supreme Court decision in Perez v. Sharp , 32 Cal.2d 711 (1948) and to the United States Supreme Court decision in Loving v. Virginia, 388 U.S. 1, decided 19 years later in 1967 that held that interracial marriages may not be prohibited under the protective umbrella of the due process and equal protection clauses of the Fourteenth Amendment. Fifty years earlier, such decisions relating to interracial marriages could not have been expected. Indeed, at the time of those decisions, it is unlikely that the issue of same-sex marriages would have been considered, let alone protected under the mantle of the Constitution. More and more same-sex couples have “come out of the closet” and have been assimilated in our society and, to a large extent, have become recognized by an increasing segment of our population. Vermont has created its civil union system, and California more recently has enacted a domestic partnership law. Similar legislation has been introduced in 13 other states. Bills to permit same-sex marriages have been introduced in five states, and bills to prohibit same-sex marriages or to prohibit recognition of civil unions or domestic partnerships have been introduced in 10 states. In May, 2003, a bill was introduced in Congress to amend the United States Constitution to prohibit same-sex marriages. The controversy rages.

Conclusion

Perhaps even more important, as sociologic views of what constitutes the “family” continue to develop over the years, the recognition of same-sex marriages may simply be part of a progression in societal life involving the changing concepts of family. If it is, where will that progression lead? It will be interesting to find out.