When
Massachusetts
gay
couples
start
tying
the
knot
legally
next
week,
many
experts
predict
both
proponents
and
opponents
of
same-sex
marriage
will
file
a
variety
of
lawsuits
seeking
to
expand
or
restrict
their
newfound
marriage
rights.
At
greatest
dispute
will
be
federal
benefits
for
gay
couples
and
a
constitutional
challenge
to
the
federal
Defense
of
Marriage
Act,
a
case
that
many
experts
agree
is
all
but
inevitable.
“I
would
anticipate
that
federal
DOMA
would
be
challenged
by
Massachusetts
same-gender
couples,”
said
Mark
D.
Mason,
treasurer
of
the
Massachusetts
Bar
Association
who
also
wrote
two
amicus
briefs
for
Goodridge
vs.
Department
of
Public
Health,
the
case
that
led
to
the
legalization
of
gay
marriage
in
Massachusetts.
“Likewise
I
anticipate
that
Massachusetts
residents
who
move
to
any
of
the
12
jurisdictions
which
do
not
have
DOMAs
will
challenge
the
legality
of
their
marriage
there
as
well.”
Andrew
Koppelman,
professor
of
law
and
political
science
at
Northeastern
University
and
author
of
the
“Gay
Rights
Question
in
Contemporary
American
Law,”
said
that
the
courts
are
likely
to
get
involved
in
the
federal
DOMA.
DOMA,
Koppelman
said,
has
two
main
provisions:
it
stipulates
that
one
state
does
not
have
to
recognize
a
gay
marriage
performed
in
another
state,
and
it
denies
federal
benefits
to
gay
couples.
Koppelman
said
a
court
is
likely
to
uphold
the
first
part
of
DOMA
since
it
is
already
a
part
of
federal
law
but
the
latter,
denying
benefits
to
same-sex
couples,
is
unconstitutional
because
it
“singles
out
gays
for
disadvantage.”
Koppelman
said
that
two
U.S.
Supreme
Court
cases,
1995’s
Romer
vs.
Evans,
which
struck
down
Colorado’s
anti-gay
ballot
measure
banning
local
governments
in
Colorado
from
passing
gay
civil
rights
laws
and
last
year’s
Lawrence
vs.
Texas
decision
that
abolished
U.S.
sodomy
laws
buttress
his
claims.
But
he
expressed
concerns
that
a
fusillade
of
litigation
could
“backfire”
and
further
inspire
opponents
to
press
ahead
with
a
Federal
Marriage
Amendment
that
would
ban
gay
marriage
outright.
Koppelman,
who
supports
same-sex
marriage,
cautions
potential
litigants
“not
to
file
those
lawsuits”
because
“you
will
lose
and
you
will
generate
bad
precedent.”
“American
culture
is
changing,”
Koppelman
said.
“The
Massachusetts
decision
was
unthinkable
15
years
ago,
and
now
everyone
is
going
to
live
with
it.
It’s
a
slow
process.”
Lisa
Cukier,
the
past
co-chair
of
the
Massachusetts
Gay
&
Lesbian
Bar
Association
and
president-elect
of
the
Massachusetts
Probate
&
Family
Inn
of
Court,
said
that
lawsuits
should
be
brought
with
the
“right
kind
of
cases”
when
the
“discrimination
is
so
painfully
clear”
that
there
is
no
way
the
court
can
do
anything
but
strike
down
a
particular
law,
whether
it
is
the
federal
or
a
state
DOMA.
But
Cukier
envisions
a
variety
of
legal
scenarios
after
May
17,
notably
the
portability
of
a
marriage
license
issued
to
Massachusetts
gay
couple.
Cukier
said
that
if
such
a
couple
vacations
in
one
of
the
states
that
expressly
prohibits
same-sex
marriage
and
one
spouse
is
seriously
injured,
the
other
spouse
may
be
denied
access
to
that
partner
in
an
intensive
care
unit.
Stemming
from
such
a
scenario,
Cukier
said
another
likely
challenge
would
be
a
“loss
of
consortium”
claim
if
one
spouse
has
a
personal
injury
in
a
state
that
prohibits
gay
marriage
and
the
other
spouse
wants
to
file
a
wrongful
death
action.
Legally
speaking,
that
state
is
not
required
to
recognize
that
marriage
and
gay
couples
would
be
barred
from
filing
a
loss
of
consortium
claim,
Cukier
said.
One
of
the
main
reasons
that
federal
DOMA
is
likely
to
be
challenged
is
because
Massachusetts
gay
couples
will
not
be
eligible
for
federal
benefits.
Evelyn
Haralampu,
a
Boston
tax
lawyer,
said
that
“there
is
a
lot
of
gray
area”
when
it
comes
to
same-sex
couples
receiving
federal
benefits.
While
a
gay
couple
cannot
file
a
joint
federal
tax
form,
Massachusetts
taxes
are
based
on
federal
taxable
income.
Haralampu
said
that
before
a
couple
can
file
state
taxes,
they
must
first
know
what
their
federal
returns
are.
“Do
you
use
your
actual
federal
taxable
income
based
on
an
individual
or
single
filing?”
Haralampu
asks.
“Frankly,
our
legislature
has
not
addressed
that
issue
yet.
“It’s
a
question
of
mechanics.
How
do
you
calculate
the
tax?
You
can’t
file
jointly
federally,
but
you
could
file
jointly
in
the
state.”
And
another
messy
area,
as
Haralampu
puts
it,
is
how
federal
law
impacts
benefits
for
gay
couples.
As
an
example,
Haralampu
cited
the
recent
announcement
by
a
Boston
labor
union
that
it
will
not
include
legally
wed
gay
couples
under
health
and
pension
plans.
On
Tuesday,
the
International
Brotherhood
of
Electrical
Workers
Local
103
issued
a
clarification
of
the
phrase
“dependent
spouse”
to
mean
“a
person
of
the
opposite
sex.”
“The
way
the
law
is
now,
that
seems
like
a
certainly
reasonable
position
to
take
under
the
law
particularly
where
the
plan
is
self-insured,”
Haralampu
said.
“There’s
nothing
a
state
can
do
to
change
that.”
It’s
“reasonable
under
the
law,”
Haralampu
said,
because
federal
DOMA
applies
to
the
federal
law,
which
regulates
health
insurance
plans
and
overrides
all
state
laws,
even
if
the
state
said
you
cannot
discriminate
based
on
sexual
orientation.
Laurence
Tribe,
constitutional
law
...
