Massachusetts Marriage: Pros and Cons

April 27, 2004

The marriage saga moves forward. Gay and lesbian couples are in court in various parts of the country, testing the validity of marriages entered into in California, Oregon, New Jersey, and New York. Our opponents are also busy trying to preserve their narrow view of civil rights by amending state constitutions or passing ever more restrictive defense of marriage acts. Since the demise of the sodomy laws in the US, marriage and our desire to protect our partners has emerged as the next lightning rod in our battle for equal rights.

In less than 30 days, barring some unlikely circumstances, marriage, with all of its rights and responsibilities, will be legal in Massachusetts for same-sex couples. Although this is welcome news for Massachusetts's residents, there are many couples living in other states that are considering whether they should make the trip to Massachusetts. For all couples, there are a pros and cons that should be considered carefully before you take the plunge.

Cons

First, outside of Massachusetts, the marriage will have no U.S. state recognition. If you live in one of the 38 states that specifically ban same-sex marriage, your marriage will be completely void in that state. In all U.S. states other than Massachusetts, your marriage will not entitle you to any of the benefits of marriage under your state laws - yet. However, expect to see lots of court challenges made by couples that marry in Massachusetts and then file suit to recognize the marriage in their state. Ultimately, these suits will win, which is why those who oppose us are trying to pass a federal amendment.

Second, regardless of where you live, the marriage will have no federal recognition. The federal Defense of Marriage Act, which President Clinton cowardly signed in the middle of the night, prohibits the federal government from recognizing a same-sex marriage. This means federal rights, such as social security, Medicaid and Medicare, and immigration laws, among other rights, will be unaffected until the DOMA is overturned or repealed. However, a legal marriage in one state gives rise to a legitimate legal challenge to this unconstitutional law.

Third, for non-residents of Massachusetts, a marriage in Massachusetts may affect your legal rights in your home state. Several states have already adopted laws recognizing some rights for same-sex couples and most are not clear on how they would be affected by a legal same-sex marriage. Vermont's civil union requires the parties to not be a party to another civil union or marriage, although it is not clear whether this applies to a same-sex marriage, since a Massachusetts marriage would be void in Vermont. California's domestic partnership act will recognize a legal union of two person of the same sex, other than a marriage, that was validly formed outside the state and is roughly equivalent to the California DP law. New Jersey's Domestic Partnership Act automatically recognizes civil unions, domestic partnerships, and affinity relationships entered outside the state. However, you may not enter a domestic partnership if you are in a marriage recognized by New Jersey, which means a Massachusetts marriage would not prevent a couple from registering as a domestic partner.

Finally, there is a chance that a Massachusetts marriage will be declared void in Massachusetts in November 2006. The state legislature has recently enacted a proposed amendment to the Massachusetts constitution that would define marriage as a union between one man and one woman but allow same-sex couples to form civil unions that shall provide all the same benefits, protections, rights, privileges and obligations of marriage and shall make all laws applicable to marriage apply to civil unions. However, in order to amend the Massachusetts constitution, the legislature must pass the exact same proposed amendment in its next session, after which the people of Massachusetts must approve the amendment by a majority vote.

Assuming that the amendment passes all of these hurdles, the earliest it could come into effect would be in 2006. In the interim, same-sex couples are legally able to marry beginning May 17. The proposed amendment does not address what happens to these same-sex couples that marry under the current law. Some think that the state would void the marriages and require the couples to form a civil union. Others think the marriages would be converted to civil unions. This opens up a significant number of legal questions, such as what happens to jointly owned property, and what is the status of children of the marriage. I don't have any answers to these questions. Frankly, it's anyone's guess as to how these issues will play out but I believe that all Massachusetts same-sex couples should execute some form of prenuptial agreement that addresses these and other questions should the marriage be declared void.

Pros

Despite the above-listed drawbacks to a Massachusetts marriage, there are some significant benefits as well.

First, there is the psychological lift your relationship will get from being legally married, even if it isn't recognized in very many places. This is no small thing, and a number of couples who have married in San Francisco, Oregon, Toronto, and other places have reported this.

Second, there are some places that will recognize the marriage. Most likely, Canada, the Netherlands and Belgium will do so. There are also some local governments, including Seattle that will recognize a marriage license issued to a same-sex couple and extend to these couples whatever local benefits they confer on married couples.

Third, although not legally recognized, the marriage license becomes one more piece of paper that could bolster a claim of certain rights in court. For example, in a probate contest or a contested guardianship, a state marriage license would have to be considered by the judge as strong proof that a couple's contractual rights should be upheld.

Fourth, more and more employers, independent of state and federal law, will extend insurance and other benefits to same-sex couples. Some will do so by extending, as many already do, domestic partnership benefits. Others will decide to provide such benefits to married couples but extend their definition of marriage to include same-sex marriages.

Fifth, as more and more same-sex couples marry, it raises the ho-hum quotient and decreases the average person's opposition to marriage equality for same-sex couples. We've already seen a significant increase in support for other types of benefits for gays and lesbians as more and more of us have come out. Many people believe a similar increase in support for our marriage rights will occur as straight people realize that gay marriage has no effect on their rights.

Finally, when marriage equality throughout the US is finally realized, as I believe it will be inevitably, the duration of the marriage will date back to the time the marriage was entered, not when the right was recognized in your state. Thus, community property, adoptions or births, and the like will be recognized from the date of marriage.

Overall, I would recommend that couples living in Massachusetts should marry, but do so with even more careful consideration than a straight couple. As for non-residents of Massachusetts, they should consult with a local attorney to consider what the effect of their marriage will be in their home state, as well as prepare the kinds of legal agreements between them that will protect them outside Massachusetts.

Some Reminders

Massachusetts has some legal requirements for marriage that require a little bit of advance planning. First, there is a three-day waiting period (including holidays and Sundays) between the time you file the notice with the clerk and the issuance of the license. Second, you must have a blood test for syphilis, no more than 30 days prior to the license issuing. Third, non-resident couples will be required to sign an affidavit that the marriage would not be void in your state.

You can expect that clerks who oppose same-sex marriage may challenge you on this last item whereas clerks in some other cities, particularly gay-friendly places like Provincetown, will take your word for this. There are 38 states that specifically ban same-sex marriage so you must not ignore this; if yours is one of these 38 states, the marriage is void ab initio (from the start.)