What’s At Stake in the Massachusetts Trial

A federal court trial is underway in Massachusetts that could have profound impact on the legal and financial lives of tens of thousands of same-sex couples across the country. The hard-working lawyers at Gay & Lesbian Advocates & Defenders are challenging the provision of the federal Defense of Marriage Act that precludes federal recognition of a valid state same-sex marriage. There are multiple plaintiffs presenting their case — some involving tax non-recognition, some involving federal pensions, and others involving other federal benefits that are conferred on opposite-sex couples. If the court rules in favor of the plaintiffs and if that ruling is upheld on appeal, the federal government will be forced to recognize lawful marriages from the six states (including D.C.) that now issue marriages licenses to lesbian and gay couples.

What is interesting is that the lawyers from the Obama justice department are saying they don’t like the DOMA rules, politically speaking, but that they are bound to uphold them until Congress changes them. Hopefully this is sending a signal to the Judge that the rules should be overturned — and it certainly is an important political message.

Even if the court rules the right way, there will still be complications and problems. It won’t be immediately clear if federal agencies (such as the IRS) will recognize state domestic partnerships or civil unions, even if the states treat them as marriages under their own state law. It also won’t be clear what will happen for couples that got married legally, but now live in states that don’t recognize their marriage. It is possible that instead of having marriages that are state-recognized but not federally sanctioned, we could end up with marriages that are federally recognized but ignored by the residents’ state government. There also may be serious problems of retroactivity, given that couples have been able to marry in Massachusetts for nearly five years now. But these would be “good” problems to have!

It probably will take a year or longer for a final decision to be reached, and since similar issues are being raised in the Proposition 8 case in California (though that involves somewhat different procedural issues), the issues could end up being decided by the United States Supreme Court. In the meantime, couples should operate under the assumption that there won’t be federal recognition for some time, unless Congress adopts the Respect for Marriage Act (ROMA) that was recently proposed.