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Justice Margaret Marshall
Is Rushing Her Ruling Because She Wants to Hide Its Full Implications,
Says Justice Martha Sosman Sosman points out some of the major problems that will have to be faced by our society if Marshall’s ruling is allowed to stand and we do not remove her before the May 17 deadline. “After all,” says Sosman, “the 180-day deadline imposed by [Marshall] does not realistically allow for a review” of the “hundreds of statutes” in Massachusetts that are “related to marriage and to marital benefits,” let alone review the differences in Federal law and the law of other States which will prevent attempts to give homosexual couples the same rights and benefits as straight couples. Justice Sosman made those statements in her second opinion, February 3, 2004, which answered the question from the Senate whether it was necessary to implement “marriage” to satisfy the court’s original opinion of November 18, 2003, or whether civil unions would suffice. Justices Francis Spina and Robert Cordy agree with Justice Sosman’s opinion. Any Decision of “Marriage” Will Not be Recognized by Federal or State Law Neither the federal government nor any state will recognize any “marriage” imposed by Justice Marshall, warns Justice Sosman. “Neither Federal law nor the law of other States will recognize same-sex couples as ‘married’ merely because Massachusetts has given them a license called a ‘marriage’ license,” she said. “That fact, by itself,” she continued, “will result in many substantive differences between what it would mean for a same-sex couple to receive a Massachusetts ‘marriage’ license and what it means for an opposite-sex couple to receive a Massachusetts ‘marriage’ license. Those differences are real, and, in some cases, quite stark. Their very existence makes it rational to call the license issued to same-sex couples by a different name, as it unavoidably -- and, to many, regrettably -- cannot confer a truly equal package of rights, privileges, and benefits on those couples, no matter what name it is given.” Justice Sosman mentioned a few of the federal laws that will not apply to these same-sex “couples” that Marshall is attempting to create. “Whatever Massachusetts chooses to call the license it grants to same-sex couples, the Federal government will not, for purposes of any Federal statute or program, treat it as a ‘marriage.’” Justice Sosman wrote. She cited the Defense of Marriage Act passed in 2000 and signed by Bill Clinton which says that in federal law “the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." Therefore, Sosman continued, “same-sex ‘married’ couples will not be treated as ‘married’ for such purposes as Federal taxation (both income taxes and, even more significantly, estate taxes), Social Security benefits (of any kind), immigration, or Federal programs providing health care or nursing home care benefits, to name but a few.” Even more important, she said was that many of our state programs which are federally funded will have to be changed, which will be an administrative nightmare. “Where those Federal programs set the eligibility requirements for many of our federally funded State programs,” wrote Justice Sosman, “those corresponding State programs will not be allowed to treat same-sex couples as married either, thus excluding them from (or profoundly affecting the calculation of) entitlement to benefits under many such State programs. State officials -- not just Federal officials -- will, of necessity, have to differentiate between same-sex and opposite-sex couples for all of these State programs. One may decry the unfairness of this different treatment at the hands of the Federal government and its programs, just as the plaintiffs in Goodridge decried the unfairness of different treatment under State law, but neither this court nor the Legislature has any power to eradicate those differences or to obviate the need that will arise to distinguish between same-sex and opposite-sex couples for many purposes.” Marshall Attempted, in a Footnote, to Blunt Justice Sosman’s Words Justice Sosman specifically noted Marshall’s attempt to hide the impact of her decision by the use of an unusual footnote which referred to Justice Sosman’s dissenting opinion. Marshall wrote: “Nor are we unaware that revisions will be necessary to effectuate the administrative details of our decision.” To which Justice Sosman replied with indignation about the reference to “administrative details.” The full text from Justice Sosman is as follows: “Once the euphoria of Goodridge subsides, the reality of the still less than truly equal status of same-sex couples will emerge, and it will emerge in pragmatic ways far beyond the purely symbolic issue of what their legal status is to be named [marriage or civil union]. There will surely be more to address than mere ‘administrative details.’” She then went on to note that most states will refuse to recognize our “marriage licenses.” “Most States will refuse to recognize a ‘marriage’ license issued by Massachusetts to a same-sex couple. [In addition, since other states will not know whether or not our marriage license is for a homosexual couple or a straight couple, they will not recognize any marriage license from Massachusetts.] Not only would such a [same-sex] couple be deprived of any benefits of being ‘married’ if that couple moved to another State, but such a couple would not have access to that State's courts for purposes of obtaining a divorce or separation and the necessary orders (with respect to alimony, child support, or child custody) that accompany a divorce or separation. “Ironically, a ‘marriage’ license issued to a same-sex couple will not only fail to entitle that couple to the same array of benefits that normally attend the marriage of opposite-sex couples, but it will not subject them to the same obligations, either -- their status as a ‘married’ couple, and therefore all of the obligations that attend that status, can be made to disappear by the simple expedient of moving to another State that will not recognize them as ‘married.’ Opposite-sex couples, once ‘married’ in Massachusetts, cannot shed that status and its significant obligations so easily. “It would be rational for the Legislature to give different names to the license accorded to these two groups, when the obligations they are undertaking and the benefits they are receiving are, in practical effect, so very different, and where, for purposes of the vast panoply of federally funded State programs, State officials will have to differentiate between them. That these differences stem from laws and practices outside our own jurisdiction does not make those differences any less significant. They will have a very real effect on the everyday lives of same-sex couples, and the lives of their children, that will unavoidably make their ostensible ‘marriage’ a very different legal institution from the ‘marriage’ enjoyed by opposite-sex couples. “That lack of recognition in other jurisdictions is not simply a matter affecting the intangibles of ‘status’ or ‘personal residual prejudice,’ [as Marshall claims in her opinion] but is a difference that gives rise to a vast assortment of highly tangible, concrete consequences. It is not the naming of the legal institution that confers ‘a different status’ on same-sex couples [as Marshall claims in her opinion] rather, that difference in terminology reflects the reality that, for many purposes, same-sex couples will have ‘a different status.’ “While many hope that, by way of litigation and lobbying efforts, same-sex couples will ultimately obtain recognition of their Massachusetts ‘marriages’ by the Federal government and by other States, no one predicts, even on the most optimistic scenario, that such widespread recognition will be achieved anytime in the near future. It remains to be seen whether it will be achieved at all, as it presently faces considerable -- and vehement -- opposition from various quarters. The Legislature is entitled to structure and name its licensing programs based on conditions as they presently exist. It is not required to assume the success of yet-to-be-filed litigation and lobbying efforts around the country.” Massachusetts Laws Would Require Drastic Changes Justice Sosman cited many changes that would need to be made in Massachusetts law, that range from “the mundane” to the “very substantive and complex.” ● Same-sex couples would be allowed to file joint income tax returns with the state, but they would not be allowed to file joint Federal returns. “When, on their Massachusetts returns, they encounter the numerous cross-references to what was entered on a particular line of their Federal return, what figure are they to use? Some regulation or instruction, applicable only to the tax returns of same-sex couples, will inevitably have to be promulgated.” ● The state could be required by Margaret Marshall or the Legislature to give special benefits in order to compensate same-sex couples for the “unfairness” of the federal ruling. Justice Sosman asks: “On a more substantive level, would it not be permissible (and, in the view of many, appropriate) for the Legislature to provide some form of tax benefit to same-sex couples to recognize that they have been deprived of certain deductions, credits, or other benefits on their Federal income taxes or Federal estate taxes.” She cites a 1980 SJC case where the court upheld allowing renters to deduct 50% of their rent from their state return in order to compensate for the “unfair” federal income tax which allows only deductions for mortgage interest paid by owners. ● Would it be necessary to compensate same-sex couples for social security, health care and other benefits? She queries: “Would it not also be permissible (and, in the view of many, appropriate) to establish a program of benefits for same-sex couples and their children to offset the hardship they will encounter as a result of being denied Social Security benefits, health care benefits, and the many other benefits that opposite-sex married couples (and their children) receive under Federal programs and federally funded State programs?” She cited a Massachusetts law which gives welfare benefits from the state to immigrants who had been eliminated from welfare by the federal Welfare Reform Act of 1996. ● Will we spend the money to help homosexuals who are married here and have marital problems after they leave? “And, would it not be desirable to try and formulate some mechanism -- admittedly complex and difficult to fashion -- by which same-sex couples who move out of State could still have resort to Massachusetts courts to enforce the obligations of their union in the event one party or the other wished to dissolve it?” |
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