What Benefits Are Exclusive to Marriage?

Coming recently to our attention, an undated "Memorandum in Opposition to H.4840" (pdf) by law professors and other law school personnel asserts that the Massachusetts Catholic Conference’s reading of the Protection of Marriage Amendment is at odds with the amendment’s actual language and the framers’ intent. See POMA Facts containing the document to which the law professors were responding.  Before referring to points that we believe remain in dispute, a mention of potential areas of agreement is warranted.

Potential Areas of Agreement

The word "exclusive" does matter!

We commend the law professors for the measured tone of their response and for taking seriously the actual language of the amendment and its use of the word "exclusive" to describe the category of marital benefits at issue. Their discussion of the amendment lacks the fervid pitch characterizing much of the legal testimony submitted on April 9 before the Joint Committee on Public Service, and unfortunately reflected to a great extent in the committee’s majority report. Everyone benefits when the intensity of the rhetoric is dialed down to more temperate levels.

Are some charges against the amendment indefensible?

The law professors do not repeat the extreme charge that the amendment would somehow make it "illegal" to provide health care, insurance, family leave, hospital visitation rights and other public benefits that go to unmarried persons already. They do not indicate whether they agree or disagree with this charge; they just fail to mention or defend it. Perhaps they see this charge for what it is—inflammatory and ultimately indefensible. Any benefit that already goes to someone other than or in addition to a spouse cannot be "exclusive to marriage".

Judicial surprises are a concern for everyone.

We agree entirely with the law professors’ observation that "it is by no means certain how the courts will interpret any given word" in the constitution, "and as a result, the conclusions that courts may and do reach are far from foreseeable or guaranteed." This uncertainty only adds to the justifiable concern among the amendment’s supporters about Goodridge v. Dep’t of Public Health. We fear that our courts in that case will misinterpret the state equal rights amendment to overturn the state’s current marriage license policy and dictate the recognition of same-sex marriage. While never fail-proof, clear drafting of constitutional language, and helpful expressions of intent by the framers to guide the courts in debates over an amendment’s meaning are the best that anyone can do to limit the potential for judicial error.

Areas of Disagreement

The SJC has not adopted the opponents’ interpretation of the amendment.

The law professors claim that the "reliance on the term ‘exclusive’ as a limiting factor in the Amendment’s scope is . . . contrary to established legal precedent as stated in the recent S[upreme] J[udicial] C[ourt] decision" in Albano v. Atty General. The SJC’s June 13 ruling upheld the amendment’s certification as suitable for the ballot. The law professors’ claim is puzzling—taking cognizance of all the words in an amendment is never contrary to established legal precedent. What rule dictates that the word "exclusive" be ignored as if it was not in the amendment? The law professors further assert that a narrow reading of the amendment is "inconsistent with the Supreme Judicial Court’s interpretation of the proposed amendment" in Albano. This assertion is inaccurate. The law professors selectively quoted from the part of the Albano ruling where the SJC was describing the arguments raised by the amendment’s opponents. The SJC never adopted the opponents’ interpretation as its own but assumed for the sake of argument that even if the amendment "may" (the SJC’s word) affect various benefits, its certification for the ballot still was correct.

The amendment’s plain meaning takes precedence over any conflicting interpretation.

The law professors argue that certain statements by an individual supporter of the amendment, Bryan Rudnick, who is no longer employed by the Massachusetts Citizens for Marriage, betray an intent by the amendment’s framers to "prohibit state recognition of domestic partnerships or civil unions". To the extent that expressions by individuals supporting the amendment conflict with the plain meaning of the amendment’s language, the language governs. Opinion of the Justices, 422 Mass. 1212, 1224-26 (1996). By its own terms, the amendment prevents same-sex relationships from being recognized "as marriage or its legal equivalent." It cannot be read as prohibiting unmarried relationships from being recognized at all and for purposes other than to equate them to marriage.

The Massachusetts Citizens for Marriage backs this reading of the amendment. Letter to Attorney General Tom Reilly from Carl Valvo, representing the Massachusetts Citizens for Marriage during the certification stage, at 2 (Aug. 16, 2001) (the amendment would allow the state to provide non-exclusive benefits to unmarried persons, as long as they are not "extended on the basis of an alternative legal status equivalent to marriage"); see also Massachusetts Citizens for Marriage, Questions and Answers of the Protection of Marriage Amendment (May 2002), found online at http://www.massnews.com/2002_editions/05_May/052102_mn_questions.shtml ("Recognizing a same-sex relationship by calling it a domestic partnership or civil union would not, in and of itself, violate the Amendment").

Legal Analysis of Memorandum in Opposition to H. 4840

June 28, 2002

INTRODUCTION

The Memorandum in Opposition to H. 4840 interprets the Protection of Marriage Amendment as limiting any benefit found in a particular statute or regulation "apply[ing] exclusively to spouses by express terms". If a statute is exclusive to spouses, argues the Memorandum, then whatever benefit it provides is exclusive to marriage. The Memorandum concludes that the Amendment’s impact "would be far from limited" given the number of individual policies that apply exclusively to spouses. Memorandum at 2.

Even if the Amendment mandated this interpretive approach, many of the policies the Memorandum cites as expressly exclusive to spouses in fact also expressly apply to various categories of unmarried persons. Thus even under the Memorandum’s own test the benefits in these statutes are not exclusive to marriage.

Moreover, the Memorandum’s interpretative approach overlooks the possibility that a particular benefit extended only to spouses in one provision may also be provided to persons other than or in addition to spouses in an entirely separate provision, thus rendering the benefit non-exclusive.

The amendment refers to "benefits or incidents exclusive to marriage", not to "statutes that are applied exclusively to spouses." Thus its actual language does not limit the inquiry about what is exclusively marital to the individual statute or policy directly at issue in any one case. The proper question is whether a particular benefit goes only to spouses when considering all of the provisions in Massachusetts law referring to or employing the benefit in question. A benefit applied exclusively to spouses within the four corners of a particular statute may not be "exclusive to marriage" since other statutes or policies may provide that benefit to non-spouses in other contexts. Even if a benefit goes only to spouses in a particular policy, the Amendment cannot be read as shielding that policy from change when the benefit at issue already is extended elsewhere to unmarried persons.

Under this reading, faithfully based on the amendment’s actual language, very few public benefits or incidents are exclusive to marriage, and therefore subject to the amendment’s scope.

Wage Assignment: G.L. c. 154, § 2 also requires the employer’s consent.

License Transfers: G.L. c. 112, §§ 36, 53 contemplate that the deceased license holder may be unmarried by also permitting the license to be automatically transferred to his or her executor or administrator.

Burial Plots: G.L. c. 114, § 29 also provides for transfer of a burial plot to the deceased person’s children when there is no spouse.

Duty of Support: G.L. c. 273, §§ 1, 15A also apply to the support of minor children.

Testimonial Privileges: G.L. c. 233, §20 (1) also excludes the testimony of an unemancipated child living with a parent and G.L. c. 111F, § 21 also shields disclosures made to fellow employees.

Automatic Defenses: G.L. c. 274, § 4 also extends the automatic defense to parents, grandparents, children, grandchildren, and siblings.

Abuse Prevention: G.L. c. 209A, § 1 also extends automatic protection against abuse to "family or household members", including anyone residing together, related by blood, or having a child "in common regardless of whether they have ever married or lived together".

Wrongful Autopsy: Kelly v. Brigham & Women’s Hospital expressly recognizes that the right to sue for an unconsented autopsy applies beyond the spousal context by extending to parents with control over a child’s body and to any other "person having the duty to bury the body", 51 Mass. App. Ct. 297, 302 (2001).

Control of the Body of the Deceased: Stackhouse v. Todisco expressly states that "In the absence of direction from the decedent, a surviving spouse, or, failing such a spouse (as here), then the decedent's next of kin, have a ‘possession’ of the body so that they may dispose of it for burial according to their wishes", 370 Mass. 860, 860 (1976).

Thus, contrary to the Memorandum’s assertions, none of these policies is applied exclusively to spouses according to the cited authority’s express terms.

The following benefits that the law provides only to spouses under certain policies, as described in the Memorandum, are also provided to non-spouses through other policies.

Treatment as an Economic Unit: Corporations are also treated as economic units. See Horizon House-Microwave, Inc. v. Bazzy, 21 Mass. App. Ct. 190, 195 (1985) (referring to a corporation as an "economic unit"); Gardiner v. Treasurer & Recr. Gen., 225 Mass. 355, 370 (1916) (observing that the law has long recognized the corporation as "a single . . . legal being . . . ‘a separate legal entity’" quoting from Peterson v. Chicago, Rock Island & Pac. Ry., 205 U.S. 364, 392 (1907) (emphasis added)).

Joint and Severable Liability: G.L. ch. 156, §§ 10, 37, 60 (holding corporate directors "jointly and severally liable" in various contexts).

First Priority: The Memorandum asserts that the "position of first priority" in prioritizing policies is exclusive to spouses. First, that claim is wrong in that prioritizing policies exist outside the family law context, and the position of first priority can go as a matter of course to any given entity where spousal interests are not even at issue. For example, G.L. c. 156B, § 103 gives shareholders the position of first priority over creditors and the state in any dissolution of a corporation. Second, the ranking in the family law context that governs categories of persons beyond spouses would not be exclusive to marriage either. Instead, the succeeding order of priority is usually based on factors such as degree of kinship, where persons can qualify as next-of-kin by birth out-of-wedlock or by adoption. Finally, it is difficult to imagine any public policy reason in the family law context for giving an automatic priority to an unmarried partner over an individual’s spouse.

Maximum Amount: The Memorandum also argues that the indirect financial benefit afforded children under G.L. c. 32, § 100 (providing for a pension to spouses of officers killed in the line of duty based on a "maximum salary") is somehow a benefit exclusive to marriage. In fact, other statutes creating alternative survivor financial arrangements allow for children of officers without spouses to receive the same level of payments that a spouse, had there been one, would have received. See, e.g., G.L. c. 32, §§ 89, 89A, 89B. Thus, the payment of a "maximum" amount is not exclusive to marriage and the Legislature would be free to equally accommodate the children of an unmarried officer by amending G.L c. 32, § 100 with language found in §§ 89, 89A, etc.

Waiver Right: The right of waiver is afforded in Massachusetts law in a variety of contexts too numerous to list, whereby an individual or entity is empowered to renounce some right or interest otherwise due. A search on the General Court website for the term "waiver" produces 300 different statutes, the majority of which authorize individuals whether married or not to waive a particular contractual, statutory, or other interest.

Free Rent: G.L. c. 6, § 133D provides for rent-free accommodations for blind persons licensed to operate a vending facility.

Burial: G.L. c. 115, § 7 provides a burial place and other funeral expenses for indigent veterans of the armed forces and for their dependents.

Loss of Consortium: G.L. c. 231, § 85X gives to parents, whether married or not, the right to sue for loss of consortium for the negligent causing of a child’s death.

Duty of Fidelity: Seder v. Gibbs, 333 Mass. 445, 453 (1956) recognized that corporate directors "are bound to act with absolute fidelity" to the corporation and its shareholders. Of course, the particular duty of "fidelity" that the Memorandum refers to by citing the adultery and polygamy statutes deals with a benefit that is unquestionably exclusive to marriage (see below).

Causes of Action: While the law does not give unmarried persons access to the divorce courts to resolve relationship-related disputes regarding the distribution of property through equity or to claim support or alimony, it nonetheless provides other judicial avenues for addressing disputes over property, financial assistance, and the care of children. See Wilcox v. Trautz, 427 Mass. 326 (1998) (holding that unmarried cohabitants may enter judicially enforceable contracts regarding financial, property and other matters relevant to their relationship); E.N.O. v. L.M.M., 429 Mass. 824 (1999) (holding that unmarried cohabitants may enter judicially enforceable "co-parenting" agreements subject to the child’s best interests).

Thus, contrary to the Memorandum, which claims that such benefits "can hardly be called anything other than ‘exclusive to marriage’", they indeed go to persons other than or in addition to spouses and therefore do not qualify as exclusive.

The state has chosen to associate or connect many benefits to marriage, making spouses eligible for such benefits by virtue of their married status. But with the exception of those policies identified in the next section, none of these benefits is exclusively marital, that is, provided only to spouses.

For example, contrary to the April 9, 2002, Majority Report of the Joint Committee on Public Service, the following policies are not threatened by the amendment because their non-exclusive nature is readily apparent:

Health & Other Insurance: State employees and their dependents are automatically eligible for life, accidental, and health insurance. Covered dependents include not just spouses, but also children and parents.[2]

Bereavement & Other Paid Leave: State managers and confidential employees may take bereavement leave upon the death of not just a spouse, but also a child, step-child, parent, step-parent, brother, sister, grandparent, grandchild, spouse’s parent, a legal ward, a person living in the employee’s household, and others.[3] At least one major collective bargaining agreement involving other state workers grants paid leave for the care or the death of numerous categories of persons in addition to a public employee’s spouse.[4]

Hospital Visitation: While there are no state-wide policies governing this benefit, national hospital accreditation standards require all accredited hospitals, whether public or private, to have visiting policies that include any person "who plays a significant role in the individual’s [patient’s] life. This may include a person not legally related to the individual".[5]

Survivor Benefits: While many laws demonstrate the non-exclusive nature of survivor benefits, a reference to just a few suffices to prove the point: M.G.L. c. 32, §§ 89, 89A, 89B, 95A, 95B, 100, 100A, all of which include not only spouses, but also children, and one of which (§ 100A) also includes parents as beneficiaries.

Only the following public benefits can be considered exclusive to marriage.

The amendment’s sponsors have identified four public benefits in particular that are exclusive to marriage, and thus remain critical to the integrity of the institution:

1. the right to be identified as being married;[6]
2. the right to be identified as being a spouse, a husband or a wife;[7]
3. the right to be eligible for receiving a marriage license;[8]
4. the right to receive the legal protections afforded to sexual relations between spouses.[9]

These benefits have never been provided to persons in relationships other than those consisting of a man and a woman. Removing the connection between these rights and the coming together of the sexes by allowing other relationships to qualify would radically redefine marriage. The amendment would require the state to continue its longstanding policy of reserving these four benefits exclusively to marriage between a man and a woman.

A case can also be made that a tenancy by the entirety is exclusive to marriage as it is "a form of concurrent ownership that may exist only between co-owners who are husband and wife." Coraccio v. Lowell Five Cents Saving Bank, 415 Mass. 145, 148 (1993). The courts and legislature have reshaped the contours of this interest over the years in a way that differs from the continuing stability of recognizing marriage as a union between one man and one woman. "The theoretical support for the tenancy was the legal unity of the husband and wife." West v. First Agricultural Bank, 382 Mass. 534, 543 (1981). However, there has been a "severe erosion" in Massachusetts law and elsewhere of what one court described as "the now vanishing fiction of identity of person". Green v. Commissioner of Corporations & Taxation, 364 Mass. 389, 393 (1973). Most states have abolished the tenancy by the entirety, West, 382 Mass. at 542 n. 14, thus attenuating the historical association between this interest and marriage.

End Notes

[1] 130 CMR §§ 520.019 (D)(1) & .016 dealing with MassHealth eligibility are governed by federal law.

[2] M.G.L. c. 32A, §§ 2(d), 5.

[3] Mass. Human Resources Div., Rules Governing Paid Leave and Other Benefits for Managers and Confidential Employees, Rule 8.01 (Jan. 28, 2002), available online <http://www.state.ma.us/ hrd/redbook0400.htm/>. Medical leave is available for the care of an employee’s spouse, child or parent. Id. at Rule 5.02.

[4] Agreement Between the Board of Trustees of the University of Massachusetts and the Professional Staff Union Local 509, Service Employees International Union, AFL-CIO/CLC, July 1, 2001—June 30, 2004, Secs. 19.1 & 20.4 (granting leave for the care of an employee’s spouse, child, parent, grandchild, grandparent, relative living in the same household, and for the death of a spouse, child, parent , brother, sister, grandparent, grandchild, person living in the immediate household, or parent of a spouse; both sections also include "domestic partner", an undefined term), available online <http://509seiu.com/um2001-4contract.html/>.

[5] Joint Comm’n on Accreditation of Healthcare Organizations, 2001 Hospital Accreditation Standards 322 (2001).

[6] Adoption of Tommy, 416 Mass. 205, 207-08 (1993) (holding that the "laws of the Commonwealth do not permit [a same-sex couple] to enter into a legally cognizable marriage").

[7] Connors v. City of Boston, 430 Mass. 31, 37 (1999) (holding that unmarried person in a domestic partnership is not a "spouse" within the meaning of a health insurance statute).

[8] Goodrich v. Dep’t of Public Health, No. 2001-1647-A (Mass. Sup. Ct. 2002) (recognizing the long historical tradition of issuing marriage licenses only to couples consisting of one man and one woman).

[9] Comm. v. Stowell, 389 Mass. 171 (1983) (upholding Massachusetts statute criminalizing adultery).