Massachusetts: Early Days

Same-sex marriage formally came to the United States before dawn on Monday, May 17, in Cambridge, MA. In the first week that marriages were legal in the state, more than 1500 same-sex couples applied for marriage licenses, according to records compiled in the state.

“We have entered a new world, in a certain way,” said Sue Hyde, a member of the Massachusetts Equality Executive Committee, one of the leading groups advocating for same-sex marriage in the state.

Yet many issues remain unresolved, or at least untested, both in Massachusetts and especially in other states. To be sure, the Massachusetts Supreme Judicial Court ruled in Goodridge v. Department of Public Health that the state's laws and constitution do not prohibit same-sex marriage, and set in motion the events that led to the issuance of marriage licenses. But the court's ruling covers only Massachusetts, and even in that case, there are many questions that will only arise as real people face real situations.

As an example, Hyde imagined a newly married lesbian approaching her Boston employer and asking to put her partner on her health benefits program. “Now, the health-benefits person is sitting there thinking, 'well, our headquarters are in New York, and our insurer is based in New Hampshire, and neither of those places recognize same-sex marriage. So can I OK the benefits?'” Hyde's answer, naturally, is yes. But there are others in Massachusetts who say no. In fact, on May 10 the pension fund directors of the International Brotherhood of Electrical Workers, Local 103, amended its rules to state that only dependents of retirees who are of the opposite sex are eligible for pension benefits. Under federal laws that cover pensions, the union can do this.

Politics

Politically, the fight over same-sex marriage is not over. The state's legislature took the first step toward amending the constitution to ban same-sex marriages on March 29. The bill would recognize civil unions instead. If legislators again vote in favor of a ban next year, then the measure would go on statewide ballot in November 2006. Massachusetts Governor Mitt Romney (R) has suggested that because there is at least some evidence that the legislature opposes same-sex marriage, the issuance of marriage licenses should be suspended until voting is clear. But on May 7, the supreme judicial court rejected that argument.

“Yes, the legislature passed the first round of a constitutional amendment,” Hyde acknowledged. “But I would argue that at this point that amendment has much farther to go to pass than we have to stop it.”

What About Non-Residents?

Ironically, residents of other states are potentially affected almost as greatly as Massachusetts residents. According to state laws, legal precedent, and tradition, states have almost always accepted the validity of marriages performed in other states when people move from one state to another. It's a fairly simple application of the full faith and commerce clause of the constitution.

But when the recognition covers marriages that other state prohibit (and are allowed under the U.S. Constitution to prohibit), the situation gets murky. Gov. Romney sought to head off the inter-state difficulties by barring clerks in Massachusetts from giving licenses to non-residents. But clerks in Cambridge, Somerville, Springfield, and Worcester ignored his directive, and issued the licenses anyway. News reports have quoted same-sex couples from many states who have gone to Massachusetts, or intend to go soon, in order to receive marriage licenses that they will expect their home states to honor.

This is where the difference between a Massachusetts marriage and a Vermont civil union becomes very significant. Civil unions, which have been legal in Vermont since 2000, confer all of the rights and obligations of marriage on partners, but they do not carry legal weight beyond Vermont's borders. Potentially, the Massachusetts marriages do.

Hyde suggests that one or more of those non-Massachusetts married couples will test their marriages in court. “It seems to me that because the same-sex marriage is legally recognized, there's a scenario in which a person could go home and seek recognition of that marriage,” she said. “It might even be a stronger case than directly challenging the law in your own home state, if you have been denied a license.”

To read briefs opposing same-sex marriage in Massachusetts, go to http://www.marriagewatch.org/cases/ma/goodridge/goodridgefiles.htm. All the plaintiffs' briefs can be found at http://www.glad.org/.

Same-sex marriage formally came to the United States before dawn on Monday, May 17, in Cambridge, MA. In the first week that marriages were legal in the state, more than 1500 same-sex couples applied for marriage licenses, according to records compiled in the state.

“We have entered a new world, in a certain way,” said Sue Hyde, a member of the Massachusetts Equality Executive Committee, one of the leading groups advocating for same-sex marriage in the state.

Yet many issues remain unresolved, or at least untested, both in Massachusetts and especially in other states. To be sure, the Massachusetts Supreme Judicial Court ruled in Goodridge v. Department of Public Health that the state's laws and constitution do not prohibit same-sex marriage, and set in motion the events that led to the issuance of marriage licenses. But the court's ruling covers only Massachusetts, and even in that case, there are many questions that will only arise as real people face real situations.

As an example, Hyde imagined a newly married lesbian approaching her Boston employer and asking to put her partner on her health benefits program. “Now, the health-benefits person is sitting there thinking, 'well, our headquarters are in New York, and our insurer is based in New Hampshire, and neither of those places recognize same-sex marriage. So can I OK the benefits?'” Hyde's answer, naturally, is yes. But there are others in Massachusetts who say no. In fact, on May 10 the pension fund directors of the International Brotherhood of Electrical Workers, Local 103, amended its rules to state that only dependents of retirees who are of the opposite sex are eligible for pension benefits. Under federal laws that cover pensions, the union can do this.

Politics

Politically, the fight over same-sex marriage is not over. The state's legislature took the first step toward amending the constitution to ban same-sex marriages on March 29. The bill would recognize civil unions instead. If legislators again vote in favor of a ban next year, then the measure would go on statewide ballot in November 2006. Massachusetts Governor Mitt Romney (R) has suggested that because there is at least some evidence that the legislature opposes same-sex marriage, the issuance of marriage licenses should be suspended until voting is clear. But on May 7, the supreme judicial court rejected that argument.

“Yes, the legislature passed the first round of a constitutional amendment,” Hyde acknowledged. “But I would argue that at this point that amendment has much farther to go to pass than we have to stop it.”

What About Non-Residents?

Ironically, residents of other states are potentially affected almost as greatly as Massachusetts residents. According to state laws, legal precedent, and tradition, states have almost always accepted the validity of marriages performed in other states when people move from one state to another. It's a fairly simple application of the full faith and commerce clause of the constitution.

But when the recognition covers marriages that other state prohibit (and are allowed under the U.S. Constitution to prohibit), the situation gets murky. Gov. Romney sought to head off the inter-state difficulties by barring clerks in Massachusetts from giving licenses to non-residents. But clerks in Cambridge, Somerville, Springfield, and Worcester ignored his directive, and issued the licenses anyway. News reports have quoted same-sex couples from many states who have gone to Massachusetts, or intend to go soon, in order to receive marriage licenses that they will expect their home states to honor.

This is where the difference between a Massachusetts marriage and a Vermont civil union becomes very significant. Civil unions, which have been legal in Vermont since 2000, confer all of the rights and obligations of marriage on partners, but they do not carry legal weight beyond Vermont's borders. Potentially, the Massachusetts marriages do.

Hyde suggests that one or more of those non-Massachusetts married couples will test their marriages in court. “It seems to me that because the same-sex marriage is legally recognized, there's a scenario in which a person could go home and seek recognition of that marriage,” she said. “It might even be a stronger case than directly challenging the law in your own home state, if you have been denied a license.”

To read briefs opposing same-sex marriage in Massachusetts, go to http://www.marriagewatch.org/cases/ma/goodridge/goodridgefiles.htm. All the plaintiffs' briefs can be found at http://www.glad.org/.