Bay Windows - April 8, 2004
Ethan Jacobs, ejacobs@baywindows.com.

But there are still some potential roadblocks to a gay May wedding season in the Commonwealth. Gov. Mitt Romney, a vocal critic of same-sex marriage, is reported to still be examining his options for halting the issuance of marriage licenses to same-sex couples, despite being turned down by Attorney General Tom Reilly to petition the SJC for a stay. Advocates speculate that Romney might try to use an executive order, but the governor has offered no indication of what options he is considering.

Advocates believe that Romney has few viable options for preventing same-sex marriage, and Gay and Lesbian Advocates and Defenders (GLAD), who represented the plaintiff couples in the Goodridge case, expect that the SJC ruling will take effect on May 17.

If same-sex couples do begin marrying, they'll confront questions with which they have never dealt before: How does one get legally married? What legal and financial impact will marriage have on same-sex couples? Does it make sense for every long-term couple to marry? How does marriage affect current and prospective parents?

Legal experts say that the answers to these and other questions can vary greatly depending on the circumstances of the particular couple and that would-be newlyweds should assess their own situation before walking down the aisle.

The Nuts and Bolts

The question with the simplest answer is, how does a couple get married?

First, there are a few basic requirements. Partners entering a marriage must both be unmarried, meaning that divorces should be finalized when the couple applies for a license. Both parties must be over 18, and if not they must seek a court order allowing them to waive the age requirement. Finally they must not be close blood relatives.

To apply for a license, a couple must go in person to any city or town clerk's office in the state, file a marriage intention application and pay a small fee, usually between $10 and $50, depending on the particular city or town. There is a three-day waiting period between when a couple files the application and when they receive a marriage license, but a couple can apply for a waiver at the town or city clerk's office and ask a judge to approve the waiver.

Before a couple can receive their marriage license, both parties must present a medical certificate to the city or town clerk's office where they filed their intention application. The certificate must be signed by a licensed physician and must show that each party has been tested for infectious syphilis and found to be uninfected. The certificate is only valid for 30 days after the test results are issued. Additionally, the physician must show that the couple received some basic information on HIV transmission, as required by state law.

Once the couple receives the license, a justice of the peace or a willing clergy member must sign it within 60 days of the couple's original filing of the intention application. Then the clergy or justice must return the license to the clerk's office where it was issued.

Anticipating a high number of same-sex couples heading for the altar this summer, Fenway Community Health is working to make things easier for them. Fenway will offer premarital clinics April 20 through May 1, where couples can get the required syphilis test and HIV counseling before making the trek to the city clerk's office. Dr. Stephen Boswell, executive director of the Fenway, said the health center has filled out medical certificates for heterosexual couples for years.

"We put these clinics in place because we wanted to be sure we had enough staff in place to handle the surge in volume [of same-sex couples]," said Boswell. Partners can attend the clinic separately or together, and Boswell said the visit usually lasts between 15 and 20 minutes.

Boswell said people have already started filling slots for the clinics, but he said Fenway will continue to offer the blood tests and sign the medical certificates as part of its regular services. He said that for couples planning on marrying in May, they should try and get the blood tests out of the way as soon as possible to make sure that they're able to get it done before applying for the license.

"I think the sooner they do it, the better," said Boswell.

The Hard Questions

Over the years GLBT people have worked to protect their relationships in a legal system that considers partners in a same-sex couple to be legal strangers. Many couples have used wills, healthcare proxies, and other documents to manufacture some of the protections granted to married couples. But legal experts say that couples should speak with qualified experts to find out whether marriage makes the most sense for them in terms of issues like taxes, estate planning, and parenting decisions.

Joyce Kauffman, a family law attorney and a member of the Mass. Lesbian and Gay Bar Association (MLGBA), said MLGBA will hold two workshops, one on April 24 at Provincetown Town Hall and the other on May 12 at Northeastern Law School, to discuss some of the legal issues that couples should examine before deciding whether or not to get married.

She said couples should understand that since the federal government and most states outside of Mass. will not recognize their marriages, they should continue to set up wills and healthcare proxies to protect each other. For couples adopting children she said they should continue to do second parent adoptions. If a married non-birth parent dies without adopting their child, that child will not be able to access their parent's federal Social Security benefits.

Mary Wormser and Jane Van Landingham, an Ipswich couple who have been together five years and plan to marry in May, said in the short term they do not trust hospitals and other institutions to treat them as a married couple, and they intend to continue using the healthcare proxies and other documents that they already use to protect themselves.

"In the short term I'm not that confident," said Wormser. "... So I would carry my stack of papers if I went to the hospital."

Kauffman said same-sex couples should decide whether they want to own all property jointly. Should a couple divorce, Kauffman said courts may consider all their property to be jointly owned regardless of who originally purchased it. For couples who want to marry but keep their assets separate, Kauffman said that "they may want to think of drafting a pre-nup."

In terms of taxes, Kauffman said that depending on a couple's financial situation, a couple could either save or lose money by filing jointly. She said couples would have to speak to an accountant or financial planner to determine how marital status would impact how much they pay in taxes.

Another concern among same-sex couples is what impact marriage will have in terms of protections for current or prospective parents.

Mary Pierce of Jamaica Plain said that she and her partner of two years, Jennifer Lewis, plan to marry in October, and they hope that their marriage will help protect their family if they decide to have children.

"It feels kind of treacherous to have kids without any legal protections," said Pierce. She said that she's heard horror stories of non-birth parents who died before completing the second parent adoption process.

"If we're married we'll both be able to have our names on the birth certificate," said Pierce.

While marriage may offer protections for parents, it could also prove an obstacle for couples looking to adopt children internationally. A licensed social worker who arranges international adoptions, who asked to remain anonymous, said that since most countries, including China and Russia, forbid adoptions by same-sex couples, prospective parents should consider postponing wedding plans until after they adopt their children.

"If [a couple] came to us and presented themselves as a two-parent gay family on paper, we can't help you," he said.

He said that if a couple is unmarried, one partner can go through the adoption process as a single person. After that partner brings the child back to the U.S. and finalizes the adoption, there's nothing to stop the couple from marrying and beginning the second parent adoption process for the other partner. He said that if a married couple lied about their marital status, it could cause major legal problems either abroad or in the U.S. when they bring the child back.

The social worker said that married couples would be much better off pursuing domestic adoption.

Kauffman warned that there was no one-size-fits-all formula for determining the effects of marriage on each family.

"People really need to get legal advice and learn how to protect themselves," said Kauffman.

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