May 14, 2004  |  By: JOE CREA  | COMMENTS     

When Massachusetts gay couples start tying the knot legally next week, many experts predict both proponents and opponents of same-sex marriage will file a variety of lawsuits seeking to expand or restrict their newfound marriage rights.

At greatest dispute will be federal benefits for gay couples and a constitutional challenge to the federal Defense of Marriage Act, a case that many experts agree is all but inevitable.

“I would anticipate that federal DOMA would be challenged by Massachusetts same-gender couples,” said Mark D. Mason, treasurer of the Massachusetts Bar Association who also wrote two amicus briefs for Goodridge vs. Department of Public Health, the case that led to the legalization of gay marriage in Massachusetts.

“Likewise I anticipate that Massachusetts residents who move to any of the 12 jurisdictions which do not have DOMAs will challenge the legality of their marriage there as well.”

Andrew Koppelman, professor of law and political science at Northeastern University and author of the “Gay Rights Question in Contemporary American Law,” said that the courts are likely to get involved in the federal DOMA.

DOMA, Koppelman said, has two main provisions: it stipulates that one state does not have to recognize a gay marriage performed in another state, and it denies federal benefits to gay couples.

Koppelman said a court is likely to uphold the first part of DOMA since it is already a part of federal law but the latter, denying benefits to same-sex couples, is unconstitutional because it “singles out gays for disadvantage.”

Koppelman said that two U.S. Supreme Court cases, 1995’s Romer vs. Evans, which struck down Colorado’s anti-gay ballot measure banning local governments in Colorado from passing gay civil rights laws and last year’s Lawrence vs. Texas decision that abolished U.S. sodomy laws buttress his claims.

But he expressed concerns that a fusillade of litigation could “backfire” and further inspire opponents to press ahead with a Federal Marriage Amendment that would ban gay marriage outright. Koppelman, who supports same-sex marriage, cautions potential litigants “not to file those lawsuits” because “you will lose and you will generate bad precedent.”

“American culture is changing,” Koppelman said. “The Massachusetts decision was unthinkable 15 years ago, and now everyone is going to live with it. It’s a slow process.”

Recognized elsewhere?
Lisa Cukier, the past co-chair of the Massachusetts Gay & Lesbian Bar Association and president-elect of the Massachusetts Probate & Family Inn of Court, said that lawsuits should be brought with the “right kind of cases” when the “discrimination is so painfully clear” that there is no way the court can do anything but strike down a particular law, whether it is the federal or a state DOMA.

But Cukier envisions a variety of legal scenarios after May 17, notably the portability of a marriage license issued to Massachusetts gay couple. Cukier said that if such a couple vacations in one of the states that expressly prohibits same-sex marriage and one spouse is seriously injured, the other spouse may be denied access to that partner in an intensive care unit.

Stemming from such a scenario, Cukier said another likely challenge would be a “loss of consortium” claim if one spouse has a personal injury in a state that prohibits gay marriage and the other spouse wants to file a wrongful death action. Legally speaking, that state is not required to recognize that marriage and gay couples would be barred from filing a loss of consortium claim, Cukier said.

One of the main reasons that federal DOMA is likely to be challenged is because Massachusetts gay couples will not be eligible for federal benefits.

Evelyn Haralampu, a Boston tax lawyer, said that “there is a lot of gray area” when it comes to same-sex couples receiving federal benefits. While a gay couple cannot file a joint federal tax form, Massachusetts taxes are based on federal taxable income. Haralampu said that before a couple can file state taxes, they must first know what their federal returns are.

“Do you use your actual federal taxable income based on an individual or single filing?” Haralampu asks. “Frankly, our legislature has not addressed that issue yet.

“It’s a question of mechanics. How do you calculate the tax? You can’t file jointly federally, but you could file jointly in the state.”

And another messy area, as Haralampu puts it, is how federal law impacts benefits for gay couples. As an example, Haralampu cited the recent announcement by a Boston labor union that it will not include legally wed gay couples under health and pension plans.

On Tuesday, the International Brotherhood ...