Marital Bliss or Legal Chaos Facing Gay Newlyweds?

 

Just over a year after seven same-sex couples argued for equal marriage rights before Massachusetts' highest court, history is being made as the Bay State becomes the first in the nation May 17 to legalize marriage between two individuals of the same sex.

After waiting 33 years, Linda Davies and Gloria Bailey of Orleans, Mass., co-defendants in last year's landmark case, plan to be first in line at their local district court to request a waiver of the state's three-day waiting period for those getting married. If the waiver is granted, they plan to rush to town hall to get a marriage license and, with minister in tow, will wed on Nauset Beach in Cape Cod, where their relationship began more than three decades ago.

"We just can't emphasize enough how happy we are this day has finally come. After all these years, it's a miracle," 63-year-old Bailey said. Davies, 58, said the pair has been on "cloud nine" since the Massachusetts Supreme Judicial Court ruled last November that denying gay and lesbian couples the right to marry violated the state's constitution.

Once the wedding is over, however, couples such as Bailey and Davis who marry in Massachusetts face a minefield studded with political turmoil and legal uncertainties as some eventually try to seek recognition of their nuptuals in other states or apply for spouse's benefits under laws written for heterosexual couples.

"For a period of time, there will be a patchwork of laws in which some states move toward equality while others pile on additional layers of discrimination. And same-sex couples who are married will encounter a mix of respect, discrimination and uncertainty," predicts Evan Wolfson, executive director of Freedom to Marry, a New York-based gay rights group.

The onset of gay marriages in Massachusetts is likely to energize moves already afoot by religious and conservative groups to shore up the traditional definition of marriage as a union between one man and one woman.

"I don't think I'm exaggerating when I say that the next 12 to 18 months will determine the future of not only our country, but of all of western civilization," Tony Perkins, the president of the conservative Family Research Council, said at an anti-gay-marriage rally in Seattle, Wash., last week. "What we are facing today -- homosexual activists seeking to eradicate marriage as we know it -- is not just another culture war, it is the culmination of the culture war."

Hundreds of same-sex weddings are expected in Massachusetts in coming weeks, a gay rights group reported, including an unknown number for out-of-state couples who may seek marriage licenses despite a 1913 Massachusetts law intended to bar such marriages. Some cities and towns, including Provincetown and Worcester, Mass., intend to defy the law by marrying out-of-state couples.

May 17 marks the culmination of a historic victory for gay rights. While several hundred same-sex couples legally have married in Canada in the past year, and several thousand recently wed in San Francisco and Oregon in violation of state marriage laws, Massachusetts will be the first state officially to issue marriage licenses to gay couples.

Even so, the future status of marriages performed in Massachusetts is in question. After holding several divisive state constitutional conventions this spring, Massachusetts lawmakers gave preliminary approval to a state constitutional amendment that would nullify same-sex marriages but establish civil unions as an alternative. The measure must pass the Legislature again in 2005 before going to a statewide vote in 2006.

Religious and conservative groups are backing similar efforts by lawmakers and citizens in nearly three-dozen states to pass laws banning same-sex marriage.

So far, lawmakers in Georgia, Kentucky, Mississippi, Missouri, Oklahoma and Utah have approved putting state constitutional amendments banning same-sex marriage on ballots this November. The measures must be approved by voters before going into effect. Lawmakers in at least seven states and citizen-led groups in four more states still are attempting to put gay marriage bans before voters this year. Three states Alaska, Nebraska and Nevada already have bans against same-sex marriage written into their constitutions.

Legal scholars predict that couples who marry in Massachusetts no matter what state they live in - soon will file lawsuits targeting the 1996 federal Defense of Marriage Act, which bars federal recognition of same-sex marriages and sanctions laws in 39 states banning gay marriage.

Challenges most likely will be waged by same-sex couples who live in Massachusetts now, marry, and then move away or travel across state lines. Possible scenarios triggering legal action include: an employer's refusal to extend health care benefits to the spouse of a gay or lesbian employee; a gay couple prohibited from filing a joint income tax return; or a married couple in a car accident in which one is seriously injured or killed and the other is denied hospital visitation privileges, control over the partner's remains or the ability to file a wrongful death lawsuit.

That's why legal advisers are cautioning newlywed same-sex couples to seek additional legal protections, such as wills and powers of attorney, which long have been the "belt and suspenders" of family law for gay and lesbian couples, Lambda Legal attorney Jenny Pizer said.

Phyllis Bossin, chair of the American Bar Association section of family law, said that if same-sex couples married in Massachusetts leave the state without having a will, they likely will be considered legal strangers in most states and "lots of bad things could happen."

"If you haven't made a will, you can't inherit your partner's property or assets, you could lose the benefit of life insurance or pensions if (your partner) died, even if you've been together for 20 years," Bossin said.

Although legal scholars are divided over how America's debate on gay marriage will be resolved, most foresee a tumultuous struggle in the near future for same-sex couples seeking recognition of their marriages, with no clear resolution in sight.

Gay rights supporters say they hope that Americans will see that the weddings being performed in Massachusetts do not threaten the institution of marriage.

"The most tangible national impact probably will be that the entire country will see that when gay and lesbian couples marry, they are joyous, their lives are more secure, society in general benefits and it causes no harm to anyone else," Pizer of Lambda Legal said. 

 
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