Gay Couples Line Up for Mass. Marriages

[Timber Loftis]

Just a few facts for you re "civil unions" (or whatever name a state may choose) vs. "marriage."

The proposition the Mass. legislature put forth before its Supreme Court was the following:
1. define a "civil union"
2. require that a "civil union" be treated as a "marriage" anywhere under the law that "marriage" was mentioned.

This would have given "civil unions" the full access to rights as a "marriage" except those otherwise denied by law. This is why I put forth the argument that if "marriage" = "civil union" then the nomenclature could not legally support an argument that a right was being denied.

Now, as for FEDERAL benefits, I want to clue you in: whether or not you call it "marriage," "civil union," or "spam," a gay couple will be denied the access to rights of marriage based on FEDERAL laws. This result is controlled by DOMA, the Defense of Marriage Act, which is a federal law stating that such unions will not be recognized for FEDERAL programs.

You also mention the legal issue of recognizing gay marriages in other states. That will be dictated solely by the other states. The body of law regarding this issue is known as "full faith and credit" and provides that other states usually give "full faith and credit" to the legally-defined status of citizens from any state. This body of law is why your Arizona driver's license will be valid in Oregon, and why if you divorce your wife who you married in New York, a North Carolina court will be able to dissolve the union and split up the goods.

However, other states will often differ. Consanguinity laws are an example. For instance, second cousins may be legally married in some states, but a state that disallows such unions (such as Kentucky) may decide not to recognize the other state's marriage of second cousins.

I had to research this issue for the VT legislature when it was enacting the Civil Union law in VT. It was generally recognized that for non-VT citizens, the civil union would be basically symbolic, because their home state would not recognize the union. Additionally, the members of such a union must return to VT to get a "divorce" (because if their home state does not recognize the union, its couts will not preside over dissolving the union). In the Mass. marriage situation, New York has stated it will give "full faith and credit" to those unions -- but so far it is the only state to do so.

This is not really a "legal" issue to decide, because the law is set, as I describe above. It is a political issue as to whether the state decides to honor the "marriage" or not.

Just some info for the probably-uninformed.