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Same-sex marriage battle rages on

Boston-based group looks to expand rights

Email|Print| Text size + By Jonathan Saltzman
Globe Staff / November 5, 2007

The Boston-based legal advocacy group that helped make gay marriage a fact of life in Massachusetts is girding for a fight to expand the rights of same-sex married couples.

For more than a year, Gay & Lesbian Advocates & Defenders has quietly surveyed the nearly 10,000 same-sex couples who have wed in Massachusetts to see whether they want federal benefits and equal tax treatment currently provided only to married heterosexuals.

GLAD also ran ads in two publications last month asking same-sex couples to contact the group if they want to be buried in Arlington National Cemetery as military veterans with their spouses or if they unsuccessfully sought to care for a sick spouse under the federal law that lets workers take unpaid medical leaves.

Carissa Cunningham, a spokeswoman for the group that won the landmark 2003 state Supreme Judicial Court case legalizing gay marriage, said GLAD is taking aim at the federal Defense of Marriage Act of 1996. The statute says no state need recognize gay marriages from another state and denies hundreds of federal benefits to same-sex spouses.

GLAD has not decided whether to file a lawsuit or urge Congress to repeal the act, she said. But she said the group is targeting the provision that denies federal recognition of wedded same-sex couples and is not trying to expand gay marriage beyond traditionally liberal New England, where GLAD has brought suits and lobbied at state houses.

"We are not interested in forcing any other state to do anything on marriage laws," Cunningham said in an interview. "We're looking at where [the Defense of Marriage Act] most affects married couples and where the law may be vulnerable."

Critics of gay marriage say the advocates are trying to do exactly what opponents had feared - export same-sex marriage to other parts of the country.

"There's no doubt that the gay community nationwide wants to get rid of the DOMA," said Kris Mineau, president of the Massachusetts Family Institute, using the acronym for the statute signed by President Bill Clinton. "I don't understand what their premise is, that they're not pushing in any other state."

Mineau's group lost a pitched battle in June to persuade the state Legislature to pass a constitutional amendment that would have defined marriage strictly as a union between a man and a woman - and would have halted gay marriages, if approved by voters.

A decorated US Air Force veteran, he said it would be "an affront to all those who served their country" if married gay couples could be buried in Arlington National Cemetery.

Days before same-sex weddings began in Massachusetts on May 17, 2004, Mary Bonauto, GLAD's lead attorney in the suit that led to gay marriage, acknowledged in a Globe interview that legal challenges loomed but said married gay couples would have little appetite for litigation.

Still, about two years later, GLAD began e-mailing surveys to married gays to see if they wanted to receive federal benefits for which they are ineligible, Cunningham said.

Those benefits include Social Security, payments to families of public safety officers killed in the line of duty, burial in Arlington cemetery, and family leave, among others.

GLAD e-mailed a second round of surveys this summer.

In addition, GLAD ran advertisements last month in Bay Windows and In Newsweekly, two gay and lesbian newspapers, saying, "It is time to end federal discrimination against married couples!" and urging readers to contact them about burial in Arlington cemetery and family leave.

Cunningham said GLAD is focusing on those two benefits because they will resonate with the public.

So far, she said, responses to the survey include a gay business executive who was unable to leave his job to care for a spouse who died of cancer; decorated gay veterans who want to be buried with their spouses in Arlington cemetery; and, most commonly, older gays and lesbians who fear they will not be able to make ends meet if they cannot receive their spouses' Social Security benefits.

"There are stereotypes about how wealthy gay people are," Cunningham said. "The people we're hearing from are from all walks of life: factory workers, schoolteachers, people who work at Dunkin' Donuts."

Although GLAD has not decided whether it will use the information to bring a lawsuit or pressure federal lawmakers, the latter seems far more likely, given that Democrats took control of Congress this year and that the US Supreme Court has moved to the right on many social issues.

All seven Democratic presidential candidates who responded to a recent survey by the Washington-based Human Rights Campaign, including front-runners Hillary Clinton and Barack Obama, have said they support repealing the provision that GLAD is targeting. None of the Republican candidates has publicly taken that position, according to the Human Rights Campaign.

Brad Luna, a spokesman for the Human Rights Campaign, the nation's largest civil rights group for gays and lesbians, said the responses of Democratic presidential candidates made his group feel a repeal of the provision is gaining traction.

GLAD said it plans to share the findings of its survey with the Human Rights Campaign, which lobbies Congress.

Andrew Koppelman, a Northwestern University law professor and author of "Same Sex, Different States: When Same-Sex Marriages Cross State Lines," said that even if Congress or the courts dismantled the Defense of Marriage Act entirely, it would not mean other states would have to recognize same-sex couples married in Massachusetts.

Nothing in the US Constitution requires one state to recognize a marriage that takes place in another state, he said. As a result, he said, he always thought the provision making that explicit in the Defense of Marriage Act - which Congress passed in anticipation of at least one state legalizing gay marriage - was redundant, although other legal scholars have disagreed.

But he said the law indisputably denies a wide range of federal benefits to married gays and lesbians, so it makes sense for GLAD to look for tales of deprivation.

Jonathan Saltzman can be reached at jsaltzman@globe.com

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