THE CHANGING FACES OF GAY LEGAL ISSUES: From the American Bar Association's journal

...Confusion continues even in Massachusetts, which on May 17 became the first state to recognize same-sex marriages following the Massachusetts Supreme Court’s ruling in Goodridge v. Department of Public Health, 798 N.E.2d 941 (2003), that interprets marriage under state law to be the "voluntary union of two persons as spouses." But even as gay marriages are being performed in Massachusetts, the state legislature has initiated a three-step process that will put a constitutional amendment banning gay marriages before the voters in 2006, while recognizing same-sex civil unions.

The growing uncertainty about the direction of the law on this issue is making it increasingly difficult for lawyers to advise clients in same-sex domestic partnerships on just what their rights are and what steps they should take to protect them.

"Counseling clients is very difficult," says Hertz. "Part of the problem is that they do not want to hear me saying that I do not know. I can explain with great elaboration and detail all the things that I do not know, but fundamentally what I am doing is telling them that I do not know."

Compounding these difficulties is the fact that many homosexual couples simply haven't given much thought to how legal issues might arise in the course of their relationships, according to Richard Wilson, a domestic relations lawyer in Chicago.

"Given the history and the social opprobrium they have had to deal with, same-sex couples often set up relationships with no legal protections," says Wilson. "So often--and this always surprises me--they do not consider what happens if things fall apart. They've bought real estate together and all other kinds of things without a thought about what they might be getting into. They have this assumption that they will have their day in court or some sort of legal recourse and are shocked to find out that they have none."

The current push for recognition of unions between same-sex couples has emphasized the disparity in how the law treats them in comparison to heterosexual married couples.

By some counts, marriage carries with it 1,049 distinct rights, benefits and responsibilities under federal law alone. Together, federal and state laws touch on nearly every aspect of a marital relationship by addressing such matters as Social Security survivor's benefits, preferential tax treatment, standing to sue for certain torts, access to health care insurance, support obligations for children, access to divorce courts, intestacy rights, decision-making authority for an incapacitated spouse and parental rights.

There is no legal recognition of same-sex couples under federal law, and only a few states extend coverage of their laws to same-sex couples. But there has been gradual acknowledgement of the contention that at least some of the legal rights enjoyed by married persons should be extended in effect, if not in name, to persons in committed same-sex partnerships.

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