Within weeks if not days of the first same-sex weddings Monday in Massachusetts, the battle over gay marriage is expected to accelerate across the country as gay and lesbian couples file lawsuits seeking to topple barriers to such marriages in their states.
Legal scholars predict that couples who get marriage licenses will soon bring suits seeking legal recognition of their marriages in other states or benefits under federal law that married heterosexuals are eligible for in Massachusetts.
Ultimately, the challenges may target the 1996 federal Defense of Marriage Act, which reserves marriage to heterosexual couples, or some 40 state laws modeled on that statute.
"If the licenses start being issued on Monday, I would be surprised if some lawsuit somewhere has not been filed by Friday," said Andrew Koppelman, a professor of law and political science at Northwestern University School of Law and author of "The Gay Rights Question in Contemporary American Law."
Some lesbians and gays planning weddings are said to be considering potential legal actions already. Some legal specialists say such claims are part of a long-term strategy to make gay marriage legal throughout the United States. But others say the potential litigation simply reflects the reality that, despite legal marriages in Massachusetts, gay couples will still be deprived of certain rights that heterosexuals enjoy.
Joyce Kauffman, head of the family law section of the Massachusetts Lesbian and Gay Bar Association, said a federal employee in Massachusetts, whom she would not name, told her she plans to marry her partner, file for joint employee health benefits, and sue the government if it refuses to provide them. Refusal appears likely given that the 1996 Defense of Marriage Act defines marriage as the union of a man and a woman and prohibits federal benefits to same-sex couples.
"I think it's going to be an avalanche of challenges," said Kauffman.
Despite the prediction from many legal specialists that couples married in Massachusetts will seek recognition of their status in other states, that route is complicated by the conflicting signals coming from local municipalities about whether out-of-staters will be permitted to obtain marriage licenses. The Romney administration has said non-residents cannot legally be married in Massachusetts, and threatened legal action against communities that issue marriage licenses to those who don't currently live in this state or plan to move here. Some cities and towns, including Provincetown, intend to defy the governor.
As a result, legal scholars say, the strongest claims may be brought by same-sex couples who live in Massachusetts, get married, and then move away or merely travel across state lines.
Those challenges will probably be waged in local courts over matters such as: a couple moves to another state and is prohibited from filing a joint income tax return; newly married partners are in a car crash outside of Massachusetts, one is seriously injured, and the other is denied hospital visiting privileges; one partner seeks spousal immunity to avoid having to testify against the other at a criminal trial. Although the scholars were divided over how such challenges will fare, they generally agreed that only a handful of states, at most, will follow Massachusetts' cue and legalize same-sex marriage in the next few years, either through litigation or legislation. Those states will probably be ones with liberal traditions and large gay and lesbian communities, such as Oregon or California, the legal scholars said.Koppelman said out-of-state couples who obtain Massachusetts marriage licenses then sue for benefits in their own states are likely to fail. He agreed with Romney that a 1913 state law invalidates marriages performed in Massachusetts if the marriage would be void in the couple's home state. Koppelman said the 91-year-old provision merely restates what is already true in common law: Marriage laws are governed by the state where people live. In addition, Koppelman said, couples in some 40 states face another barrier: state defense of marriage laws modeled on the federal act.
"It seems to me there's no discretion at all in the courts of the other states" to recognize same-sex marriages of out-of-state residents who come to Massachusetts to be wed, Koppelman said.
Other legal scholars say the matter isn't so clear-cut.
Charles Baron, a professor of constitutional law at Boston College Law School, said state courts could find that a defense of marriage law or the 1913 Massachusetts statute discriminates against gays and lesbians and therefore violates the 14th Amendment of the US Constitution, which guarantees equal protection of the law. "It's not an open-and-shut case," said Baron. Several legal specialists expect that some lawsuits will ultimately end up on the docket of the US Supreme Court. Mary Bonauto, the civil rights project director of Gay & Lesbian Advocates & Defenders and lead attorney in the lawsuit that led to the SJC decision, acknowledged that legal challenges loom but dismissed predictions of what she called "litigation Armageddon." "If you think about it, most people who get married don't go home and file lawsuits," she said. "You go home and you live your life. . . . We're not talking about people who are looking for problems -- far from it. They're looking to be married."