Five years on, mostly smooth sailing for marriage equality

When the Goodridge decision was released on Nov. 18, 2003, legal advocates warned that time would tell how marriages between same-sex couples would be recognized in practice. Five years after the court's historic decision, Mary Bonauto, lead counsel in the Goodridge case and Civil Rights Project director for Gay and Lesbian Advocates and Defenders (GLAD), said same-sex couples have found that state agencies recognize their marriages without controversy.

"In Massachusetts things are going very well. ... It seems that people are readily and happily following [the Goodridge ruling]," said Bonauto. "I give state agencies enormous credit for that."

She said the few areas where there are problems at the state level are generally either the result of policies of former Gov. Mitt Romney or are in areas where a state program receives some support or funding from the federal government, which does not recognize same-sex marriage. In the former category is the state's use of birth certificates that have slots for "mother" and "father," with no option for married same-sex couples who have children. Romney, a strong opponent of marriage equality, refused to change the forms, and his successor, Gov. Deval Patrick, has not yet done so.

"There's not a form to accommodate same-sex couples or to take gender out of the form. ... They get a birth certificate where father or mother is scratched out," said Bonauto.

Bonauto praised the state for taking action this summer to address one of the most serious problems facing same-sex couples as a result of the interplay between state and federal government. MassHealth, the state's Medicaid program, receives a mixture of state and federal funds, and prior to the passage of the MassHealth Equality Bill in July the program was required to treat married same-sex couples as single people for the purposes of providing benefits. The MassHealth bill solved that problem by having the state pick up the added costs of providing equal benefits to same-sex couples.

At the federal level Bonauto said that same-sex couples have almost uniformly been denied recognition of their marriages with a couple of minor exceptions that Bonauto said have come to GLAD's attention. For instance, if spouses exercise their right to legally change their last name when they marry, Bonauto said that generally Homeland Security will not accept that new name as valid in issuing passports, but that GLAD knows of at least one instance where someone slipped under the radar and successfully got a passport with their married name.

Bonauto said a federal employee contacted GLAD after being denied the right to take a leave under the Family Medical Leave Act to care for her spouse during and after surgery. She said the woman's supervisor ultimately found another justification for allowing the employee to take a leave.

In employment Bonauto said that same-sex married couples have had no trouble getting coverage for their spouses under their employers' health plans, as long as those employers provide health coverage through HMOs. Couples have been denied coverage by employers that are self-insured, since regulations around self-insured companies are determined at the federal rather than state level. Bonauto said that GLAD has intervened in those cases to explain to self-insured companies that even though they can deny coverage legally to same-sex couples, they are not required to do so.

She said even with GLAD's intervention some self-insured companies still refuse to recognize the same-sex marriages of their employees, but companies are more likely to recognize couples who are legally married than they are in states that have civil unions or domestic partnerships.

"What I'll tell you is that the rate of coverage for people with marriage is higher than for civil unions or for anything else," said Bonauto.