Tuesday, November 18, 2003

Two down, forty-eight to go.

The Massachusetts Supreme Judicial Court has ordered the Massachusetts legislature to do right by its state's same-sex couples and offer legal recognition of their unions. Among the benefits currently denied, according to the court,

Benefits related to property:

joint Massachusetts income tax filing (G.L. c. 62C, � 6);

tenancy by the entirety (a form of ownership that provides certain protections against creditors and allows for the automatic descent of property to the surviving spouse without probate) (G.L. c. 184, � 7);

extension of the benefit of the homestead protection (securing up to $300,000 in equity from creditors) to one's spouse and children (G.L. c. 188, � 1);

automatic rights to inherit the property of a deceased spouse who does not leave a will (G.L. c. 190, � 1);

the rights of elective share and of dower (which allow surviving spouses certain property rights where the decedent spouse has not made adequate provision for the survivor in a will) (G.L. c. 191, � 15, and G.L. c. 189);

entitlement to wages owed to a deceased employee (G.L. c. 149, � 178A [general] and G.L. c. 149, � 178C [public employees] );

eligibility to continue certain businesses of a deceased spouse (e.g., G.L. c. 112, � 53 [dentist] );

the right to share the medical policy of one's spouse (e.g., G.L. c. 175, � 108, Second [a ] [3] [defining an insured's "dependent" to include one's spouse), see Connors v. Boston, 430 Mass. 31, 43 (1999) [domestic partners of city employees not included within the term "dependent" as used in G.L. c. 32B, � 2] );

thirty-nine week continuation of health coverage for the spouse of a person who is laid off or dies (e.g., G.L. c. 175, � 110G);

preferential options under the Commonwealth's pension system (see G.L. c. 32, � 12[2] ["Joint and Last Survivor Allowance"] );

preferential benefits in the Commonwealth's medical program, MassHealth (e.g., 130 Code Mass. Regs. � 515.012[A] prohibiting placing a lien on long-term care patient's former home if spouse still lives there);

access to veterans' spousal benefits and preferences (e.g., G.L. c. 115, � 1 [defining "dependents"] and G.L. c. 31, � 26 [State employment] and � 28 [municipal employees] );

financial protections for spouses of certain Commonwealth employees (fire fighters, police officers, prosecutors, among others) killed in the performance of duty (e.g., G.L. c. 32, �� 100-103); the equitable division of marital property on divorce (G.L. c. 208, � 34);

temporary and permanent alimony rights (G.L. c. 208, �� 17 and 34);

the right to separate support on separation of the parties that does not result in divorce (G.L. c. 209, � 32);

and the right to bring claims for wrongful death and loss of consortium, and for funeral and burial expenses and punitive damages resulting from tort actions (G.L. c. 229, �� 1 and 2; G.L. c. 228, � 1. See Feliciano v. Rosemar Silver Co., supra ).

Benefits not related to property:

the presumptions of legitimacy and parentage of children born to a married couple (G.L. c. 209C, � 6, and G.L. c. 46, � 4B);

and evidentiary rights, such as the prohibition against spouses testifying against one another about their private conversations, applicable in both civil and criminal cases (G.L. c. 233, � 20).

Other statutory benefits of a personal nature available only to married individuals include qualification for bereavement or medical leave to care for individuals related by blood or marriage (G.L. c. 149, � 52D);

an automatic "family member" preference to make medical decisions for an incompetent or disabled spouse who does not have a contrary health care proxy, see Shine v. Vega, 429 Mass. 456, 466 (1999);

the application of predictable rules of child custody, visitation, support, and removal out-of-State when married parents divorce (e.g., G.L. c. 208, � 19 [temporary custody], � 20 [temporary support], � 28 [custody and support on judgment of divorce], � 30 [removal from Commonwealth], and � 31 [shared custody plan];

priority rights to administer the estate of a deceased spouse who dies without a will, and requirement that surviving spouse must consent to the appointment of any other person as administrator (G.L. c. 38, � 13 [disposition of body], and G.L. c. 113, � 8 [anatomical gifts] );

and the right to interment in the lot or tomb owned by one's deceased spouse (G.L. c. 114, �� 29-33).

Benefits related to children:

Where a married couple has children, their children are also directly or indirectly, but no less auspiciously, the recipients of the special legal and economic protections obtained by civil marriage. Notwithstanding the Commonwealth's strong public policy to abolish legal distinctions between marital and nonmarital children in providing for the support and care of minors, see Department of Revenue v. Mason M., 439 Mass. 665 (2003); Woodward v. Commissioner of Social Sec., 435 Mass. 536, 546 (2002), the fact remains that marital children reap a measure of family stability and economic security based on their parents' legally privileged status that is largely inaccessible, or not as readily accessible, to nonmarital children. Some of these benefits are social, such as the enhanced approval that still attends the status of being a marital child. Others are material, such as the greater ease of access to family-based State and Federal benefits that attend the presumptions of one's parentage.

In so many words, conservatives would call this "trivial shit." That's why they don't apply for marriage licenses.


Elsewhere in the nation, gays face discrimination in employment, housing, education, public accomodation, and other areas, and it seems unlikely that any of that will change anytime soon. But these are far less sexy stories, and therefore less newsworthy.