Same-sex marriage ruling raises many questions, but answers few.
The instantly famous decision of the Massachusetts Supreme Judicial Court in Goodridge v. Department of Public Health, barring discrimination against same-sex marriages, actually decided very little other than the fact that many things are now about to change.
The SJC ordered the Massachusetts legislature to address, within 180 days, the implications of its ruling, and the one safe, money-in-the-bank prediction is that it will take the legislature approximately 179.9 days to act - if, indeed, it acts at all.
This means that Goodridge is not so much a final decision as a first domino in what will be a very interesting and unpredictable chain reaction of events. Perhaps the most useful exercise at this point is not to guess at how the situation will play out, but rather to frame the debate by compiling a list of questions that need to be addressed.
When will this take place? The legislature is supposed to respond under a 180-day deadline and completely rework in an intelligent, coherent manner the role of marriage in society. Without prejudging the results in any way, all I can say is that if something this daunting goes off without a hitch then maybe the SJC should also put similar deadlines on bringing the troops back from Iraq.
What are the important issues? Marriage involves a broad range of legal benefits, obligations and detriments, under both state and federal law. A quick sampling of major issues to be addressed includes 1) estate tax-spouses currently get unlimited tax-free inheritance under both federal and state law, 2) income tax-marriage was actually often penalized under federal tax law until recently, 3) property ownership-tenancy by the entirety, available only to a married couple, has special creditor protection advantages, 4) insurance-spouses are generally eligible for coverage under family plans, and 5) divorce-same-sex marriage means same-sex divorce, with alimony, support, custody, nasty break-ups, private detectives, the whole enchilada.
Where will it apply? Clearly, the Massachusetts legislature can do an ambush makeover of Massachusetts law, and give same-sex marriages all or substantially all the legal attributes of traditional marriage here in the Commonwealth. However, it is far from clear how it will then interface with the laws of other states or federal law.
In 1996 the U.S. Congress enacted the Defense of Marriage Act, which does two things. First, it provides that no state shall be required to give effect to a law of any other state with respect to a same-sex marriage. Second, it defines the words "marriage" and "spouse" for purposes of federal law, and states that a marriage is the legal union of a man and a woman as husband and wife, and that a spouse is a husband or wife of the opposite sex. The effect of DOMA is that another state may, but is not required, to recognize the validity of a Massachusetts marriage. Meanwhile, for federal law purposes, a same-sex marriage is definitely not considered valid and the marriage partner is not considered a "spouse" and thus is denied a host of potential advantages, ranging from estate tax and income tax deductions to social security benefits.
Some states will probably recognize a same-sex marriage as valid, and other states and the federal government may or may not adopt that position over time. But in the short term, there will be a host of incongruities, such as couples filing under married status for state purposes and single status for federal purposes. Basically, if you are considering a same-sex marriage, expect lots of paperwork in your future.
Why are all these issues being decided by the courts? Because in the United States these days, all important shifts in the social compact seem to emanate from court decisions. Interestingly, it is usually the United States Supreme Court that issues landmark decisions-Brown v. Board of Education, Roe v. Wade. By contrast, it is pretty unusual for a state court to issue a decision with the potentially transformative implications of Goodridge.
Who benefits from this decision? There are obviously some people in committed, long-term, same-sex relationships who are clamoring to get married-both because it provides a legitimacy to the relationship and because it may resolve some of the thorny legal issues, from inheritance to insurance, that currently beset a same-sex couple. Is this a large group? We will find out.
On the other hand, I anticipate that there are other people who are suddenly facing a new and not necessarily enviable dilemma, namely, they may be in a relationship that suddenly is haunted by The Original Question, namely "Will you marry me?" In brief, the fact that marriage is now a legal possibility will doubtless evoke in many cases the time-honored strategies for avoiding it. You can easily imagine the conversations: "We have such a good relationship just the way things are...I would hate to put that at risk by getting married."
Ultimately, who cares? After the initial wave of surprise, the most common reaction to Goodridge among people I polled informally was "Who cares what people do, as long as the blinds are drawn so I don't have to watch it." The simple fact is that modern life has a velocity to it that leaves little spare time to fret about the neighbors.
Some same-sex couples will be very happy with the decision, some conservatives will engage in the usual fulmination and hand wringing, but I expect that a significant percentage of the population ultimately doesn't care very much either way.
Although it has gotten a lot of initial play, I anticipate that this story will not have what is known in the newspaper business as "legs." Social conservatives may not like same-sex anything, but probably the same-sex thing they can least object to is marriage-people forming stable, long-term, committed relationships, buying homes and paying taxes, living productive lives.
Sex, as they say, always sells, but the point is that this story is not about sex. This is about marriage, and marriage, even same-sex marriage, is probably going to end up sounding placid and dull. With all the other political issues and topics dividing the country right now, I, for one, would be delighted if this subject became an absolute yawner.
Meanwhile, from a financial advisor prospective, the issue is going to be the same as for any two people getting married: long life, happiness to both of you-and, if you have the money, be sure to insist on a pre-nup.