By Donis Tracy, Boston Pilot, Archdiocese of Boston, Jan. 24, 2001, at 3
Little attention has been given in the secular media to the proposed bill that, if approved, would create a cataclysmic change to life in the Commonwealth.
The Civil Unions bill, as filed by State Senators Jarrett Barrios (D-Cambridge) and Cheryl Jacques (D-Needham), would provide same-sex couples with the same benefits and protections afforded to married couples.
The bill reads, in part, “parties joined in a civil union shall be included in any definition or use of the terms ‘spouse,’ ‘husband,’ ‘wife,’ and other terms that denote the spousal relationship, as those terms are used throughout general or special laws of the Commonwealth.”
This bill is nearly identical to the law which legalized civil unions that was passed in Vermont in 2000.
Mary Bonauto, civil rights director of the Gay and Lesbian Advocates and Defenders (GLAD), a same-sex advocacy group, described the Vermont law, saying, “In Vermont, civil unions try to be a parallel to marriage. [They] provide all of the same legal obligations and protections at the state law level.” Bonauto is chief counsel representing seven Massachusetts gay and lesbian couples who, in April 2001, sued for the right to be married. The case, Goodridge vs. Dept of Public Health, was the first step in the effort to obtain legally recognized same-sex unions in this state, and currently is being appealed to the Supreme Judicial Court.
In a joint statement issued by Senators Barrios and Jacques, they justify the necessity of this proposed legislation, arguing that “under Massachusetts law, same-sex couples in loving, committed relationships are denied the basic rights and responsibilities granted to married couples.”
“The civil unions bill we filed,” the statement continues, “provides basic, legal recognition to same-sex couples, along with basic rights and responsibilities.”
Proponents of civil unions repeatedly point to the protections, benefits and responsibilities that they claim same-sex couples are denied.
Indeed, the proposed civil unions bill itself reads, “Recognition of civil marriage by the Commonwealth is the primary and, in many instances, the exclusive source of numerous benefits, responsibilities and protections under the laws of the Commonwealth for married persons and their children.”
But just what are these rights and responsibilities? The answer, it seems, depends on whom you ask.
Sarah Almer, communications and public policy director for Senator Barrios, enumerates them as such: automatic inheritance, hospital visitation, access to medical information, medical decision-making, burial rights, the ability to sue for wrongful death of the partner, worker’s compensation and survivor benefits, property transfer, family medical leave, and guardianship in case of incapacitation.
The GLAD website lists the protections and benefits of marriage as follows: medical decision-making, security for children, employee benefits — such as health insurance, pension protection and bereavement leave — the ability to file joint tax return, the ability to obtain joint home and auto insurance, and immigration.
According to Bonauto, the rights and responsibilities include hospital visitation, the ability to inherit property tax-free, and workers compensation and survivor benefits.
Although there may not be complete consensus, most of these rights and protections fall into one of four categories: immigration, tax benefits, property ownership rights and health and medical benefits.
But just how exclusive are these rights to marriage? And, equally important, how will the proposed legislation confer these rights upon same-sex couples?
One of the protections same-sex couples are denied is the right to preferential treatment regarding immigration. It is widely understood that one of the easiest routes to legal residence and citizenship is through marriage to a U.S. citizen.
Currently, foreign nationals married to American citizens are given special consideration with regard to residency.
“Our national policy is to keep families together, but same-sex couples are excluded from this narrow definition of family, leaving many bi-national gay and lesbian couples with little option but to live apart,” argues the GLAD website.
Attorney Clark Siddiqui, an Acton-based lawyer who specializes in immigration law, says that, while this assertion is accurate, a state civil unions bill would not provide relief to same-sex couples in this situation.
“Immigration matters are federal matters, not state matters,” explains Siddiqui.
“The federal government would have to succumb to the state government, and I don’t think that’s likely to happen,” he stated.
The federal Defense of Marriage Act, signed into law in 1996 by President Clinton, specifies that for all matters of federal law, “marriage” may be considered only the union of one man and one woman.
Siddiqui also points out that although in Vermont civil unions are recognized, residents in that state have no special benefits with regard to immigration law, which is a federal matter.
According to proponents of civil unions, same-sex couples are denied the benefits that married couples enjoy when it comes to income and inheritance taxes.
The benefits are two-fold: first, married couples are allowed to file joint tax returns on both the federal and state level; second, married couples automatically inherit their spouse’s estate and are exempt from inheritance taxes.
When it comes to filing income taxes, currently, same-sex couples are not allowed to file joint tax returns. They must file individual tax returns.
According to Bonauto, if the civil unions bill passed, these couples would be allowed to file joint tax returns on the state level. However, the bill would not change the individual filing requirement on the federal level.
When it comes to inheritance taxes, “many of the benefits bestowed on married couples are not extended to same-sex couples,” according to Attorney Melissa Cassedy Wesel, a Concord-based estate and tax lawyer.
“However,” says Wesel, “the amount of the inheritance must be over the ‘unified credit limit’ in order for there to be any taxes imposed on the inheritance.” In 2002, the unified credit limit was 1 million dollars.
“Anything less than the unified credit limit can be bequeathed to a same-sex significant other tax-free,” she said.
Wesel also pointed out that many of the estate and gift taxes are federal taxes. Again, the state civil union bill would have no impact on federal laws.
The ability to transfer property and apply for joint home insurance policies is another of the rights denied same-sex couples enumerated on the GLAD website. According to their website, same-sex couples are not allowed to transfer property between partners, nor are they allowed to obtain joint home insurance policies.
“There is no impediment whatsoever for same-sex couples to buy, sell, or insure property,” said Attorney Paul Giannetti, a Hudson-based attorney specializing in real estate matters.
Giannetti explained that when it comes to purchasing property, same-sex couples “have the same rights as heterosexual couples,” providing that they purchase the property as “joint tenants.”
If the couple purchases the property — be it commercial or residential — as joint tenants, the surviving partner automatically inherits the property when the other dies, says Gianetti.
Perhaps the most frequently cited “rights” allegedly denied to gay and lesbian couples fall under the category of health and medical benefits. For example, advocates for same-sex unions argue that gay and lesbian couples cannot make medical decisions for their partners, are denied access to medical information, cannot obtain joint health insurance, and do not have the same level of hospital visitation rights as married couples.
However, according to Attorney Wesel, most of these rights can be achieved by same-sex couples simply by naming each other as a “health care proxy.” A health care proxy is a person appointed to make medical decisions when one cannot make these decisions for medical reasons.
“There are no restrictions on who can be a health care proxy,” said Wesel.
A health care proxy may be designated by filling out a simple form that can be completed at any time. The designation remains valid until revoked or until another proxy is named.
As for health insurance coverage, most large, private employers in the state set their own rules regarding who may be covered under their health plans. And, because most large employer plans are exempt from state regulation, any change in Massachusetts state law would not compel them to cover same-sex couples. No “right” to health care coverage would be created by passage of civil union legislation, according to Nancy McCarrick, an executive with a major insurance company who has over 15 years experience in the employee benefits field.
For employees of smaller, private companies and those of state and local governments, a civil unions bill is unnecessary in order to grant same-sex couples coverage under an employers “family” medical plan, according to Attorney Daniel Avila, associate director of policy and research for the Massachusetts Catholic Conference (MCC).
“There’s nothing to prevent the legislation from simply adding another category to health care applications,” said Avila.
If, in fact, most of the rights and benefits of marriage can be achieved by same-sex couples through alternative means, why is there such a desire to legalize civil unions?
“The real goal of the same-sex legislation is to get the seal of approval of the state, to force the private sector to recognize their union once it is made legal,” says Wendy Herdlein, staff attorney of the Marriage Law Project, in Washington, D.C. The Marriage Law Project provides legal assistance and support to organizations promoting traditional marriage.
Herdlein argues that the push for this type of legislation is to legitimize same-sex relationships.
“Fundamentally, this case is a battle over a symbol, and who will decide the nature and meaning of that symbol,” states a ‘friend of the court’ brief submitted Dec. 20 by the MCC and several other religious organizations on the appeal of the Goodridge case.
The brief goes on to say that, throughout history, marriage has always been heterosexual in nature, and that it “meets vital social needs that cannot be fully addressed in any other institution or program.”
The statement concludes, “Appellants [those suing for gay marriage] totally reject such notions, arguing that the traditional marriage paradigm lacks even a rational basis — as if our civilization’s most elemental understanding of what constitutes marriage has been an irrational absurdity from the outset.”
“If marriage were simply a loving relationship between two people, then of course it would make sense to extend it to same-sex relationships,” said Avila. “However,” he continued, “marriage is a way of enshrining the special procreative bond which should continue to have a unique place in society.”
Currently, 36 states have passed laws protecting traditional marriage. Massachusetts is the only state to have a proposed civil unions bill on its docket this year.
By Donis Tracy, Boston Pilot, Archdiocese of Boston, Jan. 31, 2003, at 5
Pilot Correspondent
In the shadow of the defeat of the citizen-sponsored Protection of Marriage Amendment, state representative Philip Travis (D-Rehoboth), together with 13 other state legislators, co-sponsored a legislative proposal that would amend the Massachusetts Constitution by legally defining marriage.
The proposed ballot initiative reads, “It being the public policy of this Commonwealth to protect the unique relationship of marriage in order to promote, among other goals, the stability and welfare of society… only the union of one man and one woman shall be valid or recognized as a marriage in Massachusetts. Any other relationship shall not be recognized as a marriage or its legal equivalent.”
“Our constitutional language must be brought up to the modern age,” said Travis.
Speaking from his Beacon Hill office, Travis said that he believes the state constitution does not include a definition of marriage because “our Founding Fathers never could have imagined what types of discussion we would be having surrounding marriage and who can be considered married.”
“I have no problem with people making their choices,” he continued, “but I do have a problem with making same-sex marriage a constitutional right, and I have a responsibility to my constituents to be their voice.”
Travis asserted he is certain that “most people in this great Commonwealth believe that marriage should be the union of one man and one woman.”
“Biblical and moral arguments aside, we must uphold what society has always — historically always — considered marriage to be,” he said.
In order for this proposed ballot initiative to be put before a popular vote, it must first be approved by 101 state senators and representatives for two consecutive legislative sessions.
Travis admitted that the legislative process ahead will be difficult.
“It’ll be an uphill battle, I am sure, but this is too important to say, ‘I don’t want to deal with this.’ I’m not going to back away from this,” he said.
In 1996, the federal government passed the Defense of Marriage Act, which limited marriage to the union between one man and one woman. Currently, 36 states have passed legislation that protects traditional marriage.
The earliest this proposed amendment could appear on the Massachusetts ballot is 2006.