Numerous federal benefits are provided only to married couples; if gay marriage is legalized in Massachusetts, the next step for supporters would be to fight for those benefits.

01:00 AM EST on Sunday, March 14, 2004

BY ROB MARGETTA
Journal Staff Writer

Supporters of the proposal to restrict marriage to male-female couples while creating civil unions for same-sex partners, which won preliminary approval from the Massachusetts legislature last week, call it a compromise that would both protect marriage and grant gay couples all of the state's marriage rights.

But civil unions don't carry all the legal benefits of marriage, and gay-rights advocates say they aren't the social equivalent of marriage either.

In Vermont, the only state that currently grants civil unions, all state rights apply to same-sex couples, as they would under the Massachusetts proposal.

But because the federal government does not recognize civil unions, the couples lack a multitude of marriage benefits and responsibilities as stipulated in federal laws on everything from Social Security to immigration.

Richard McCoy, Vermont's public-health-statistics chief, said the list of federal benefits and rights unavailable to couples in civil unions include:

An estate-tax exemption that married couples receive, along with eligibility for the federal income-tax provision reserved for married couples.

Social Security benefits of any kind.

Joint health-insurance policies for federal employees, such as postal workers.

Immigration rights that apply to marriage.

"The federal rights from marriage vary hugely," said Karen Loewy, a staff attorney with Gay and Lesbian Advocates and Defenders. "They're all bread-and-butter issues that affect everyday life."

Loewy is one of five Gay and Lesbian Advocates and Defenders lawyers who represented the plaintiffs in the Massachusetts Supreme Judicial Court case that resulted in the court's ruling last November that same-sex couples have the right to marry in the state.

Under the ruling, same-sex marriages can begin May 17.

Meanwhile, efforts to counteract the ruling are under way in the legislature, which is considering amending the state's Constitution. The proposal to ban gay marriage and create civil unions, if it survives the legislative process, would take at least 2 1/2 years to appear on a statewide ballot.

Advocates say that going from marriage to civil unions would be "a huge step backward," in the words of Sherry Corbin, a spokeswoman for the Vermont Freedom to Marry Task Force.

Not only does civil-union legislation deny same-sex couples federal marriage rights, it eliminates any possibility of seeking those rights, said Loewy, the GLAD lawyer.

At the federal level, she said, "everything's framed in terms of marriage." Because civil unions are not marriages, couples in civil unions have no legal recourse.

Currently, even if states allowed same-sex marriages, those marriages would not be recognized by the federal government. As a result of the Defense of Marriage Act, passed during the Clinton administration, federal law defines marriage as the union of a man and a woman, and gives states the right to ignore marriage licenses that other states issue to gay couples.

But those laws could change after gay marriages begin. Advocates on both sides of the debate say the Defense of Marriage Act probably would not hold up to a legal challenge.

Loewy said she believes married gay couples would eventually challenge and most likely defeat the federal marriage law, but added that she couldn't predict how long it would take. Massachusetts Rep. Philip Travis, D-Rehoboth, the author of one of three constitutional amendments to ban gay marriage that legislators defeated last month, also said "DOMA will fold."

ASIDE FROM the lack of federal recognition and rights, civil unions are inferior to marriage in other ways, advocates say.

Vermont resident Sherry Corbin joined her longtime partner in a civil union less than a month after Vermont enacted its civil-unions legislation in 2000. "It was a victory in 2000, although it was a compromise," she said.

Almost four years later, Corbin, a spokeswoman for the Vermont Freedom to Marry Task Force, wants her state to allow same-sex marriage. Her civil union, she said, is "worth absolutely nothing outside of Vermont."

No state other than Vermont recognizes civil unions, and appellate courts in Connecticut and Georgia have blocked attempts to seek recognition. Once outside of Vermont, couples in civil unions no longer have state marriage rights.

Also, while marriage licenses in every state are virtually identical, because states other than Vermont lack civil-union mechanisms, the definition of "civil union" is hardly universal, said McCoy, the Vermont Public Health Statistics chief. He said Vermont could even decide not to recognize Massachusetts civil unions.

While the lack of recognition in other states makes life difficult for those trying to live in civil unions, couples trying to dissolve their unions have an even tougher time.

As of March 5, Vermont had issued 6,753 licenses for civil unions, but only 958 were for Vermont residents. Some of the out-of-state couples later tried dissolving their unions in their home states, but found that their courts refused to rule on the cases, McCoy said.

To dissolve the unions, McCoy said, the couples had to return to Vermont. But part of the state statute governing civil unions has a residency requirement for breaking up -- one spouse must have lived in the state for at least a year, the other for at least six months.

Another problem with civil unions, Loewy said, is that they don't receive the social acceptance of marriage.

"Civil unions were created as a way to exclude gay and lesbian people from marriage," she said. "They're discriminatory. They send a huge message to homosexual people that they're not worthy of this institution."

Corbin said her civil union doesn't allow her to connect with the other married women in her family. The union, she said, doesn't carry the emotional weight of marriage.

"Marriage, in itself, means something," she said. "We all grew up with it; we know what it means."

SUE HYDE, a spokeswoman for the Massachusetts branch of the National Gay and Lesbian Task Force, said the idea of civil unions appealed to gays and lesbians only before they were given the right to marry.

"The day before the Supreme Judicial Court decision, we would have cheered for a civil-union decision. But now, civil unions would be discriminatory," she said.

Corbin, however, predicts that civil unions will never become a problem for Massachusetts. By the time the state is in a real position to ban gay marriage and create civil unions, she said, gay marriage will no longer be an issue.

Married gay couples will need only one year to convince the state that they pose no danger to the institution of marriage, she said.

"People are going to see that the sky isn't falling," she said.

To contact Rob Margetta, phone (401) 277-7429 or e-mail rmargett [at] projo.com.