Massachusetts State House.
Boston Bar Journal

From Goodridge to Gill

November 15, 2013
| Goodridge Special Edition

Mary Bonauto Mary Bonauto

Ten years ago, invoking our state constitution and the core promise of the “dignity and equality of all individuals,” the Supreme Judicial Court broke an historic barrier and Massachusetts became the first U.S. state to declare that same-sex couples share in the freedom to marry.

As Massachusetts celebrates the 10th anniversary of the Goodridge ruling this November, and the outpouring of joy that accompanied the marriages beginning on May 17, 2004, the U.S. Supreme Court’s reflections about marriage in the recent Windsor v. U.S. ruling ring true.  In Justice Kennedy’s words, by allowing same-sex couples to marry, Massachusetts gave same-sex couples’ “lawful conduct a lawful status” and provided “a far-reaching acknowledgement” of their “intimate relationships,” which are now “deemed by the State worthy of dignity in the community with all other marriages.”

The effect has been nothing short of transformative for LGBT citizens of the Commonwealth – married or not – whose state now treats them as full citizens, and who now can stand up before family and friends to make those vows of commitment and responsibility to one another if they so choose.  Even as we faced down fierce and repeated attempts to undo the Goodridge ruling by litigation and constitutional amendments, ultimately involving every branch of government, that  affirmation of “dignity and equality” has lifted up so many here and across the nation.  We can also celebrate that our fellow citizens of Massachusetts – including the vast majority of lawmakers and Governor Deval Patrick – either always agreed or came to believe that the Supreme Judicial Court was right.

But even after Goodridge, we at Gay & Lesbian Advocates & Defenders (GLAD) knew that lawfully married same-sex couples in Massachusetts still would be treated by the federal government as though they were single.  What the Commonwealth gave in dignity and worth, the 1996 federal “Defense of Marriage Act” (DOMA) took away.  Married couples would be denied Social Security, pension, tax, veterans and employment protections – all the rights and benefits afforded to married persons – only because of DOMA.  So the question was not if we would challenge that federal discrimination, but when. Filing suit immediately was not an option. Even though couples were marrying in Massachusetts, the political battle to prevent Goodridge from being overturned by a constitutional ballot measure was still ongoing and was not resolved until June 2007. We also needed time for this culture-shifting milestone to settle into the fabric of life in Massachusetts so others would see that these marriages weren’t so alien or threatening after all.

The legal analysis started in 2004.  Then, in 2007, we took on our first client (Dean Hara, the surviving spouse of former Congressman Gerry Studds) and litigated on his behalf before the Merit Systems Protection Board.  We subsequently began to help other clients to seek income tax refunds or wend their way through lengthy Social Security processes.  At the same time, we approached Attorney General Martha Coakley to ask her office to consider challenging DOMA for invalidating marriages that the Commonwealth saw fit to license.  GLAD also teamed up with impressive talent, including Foley Hoag and Sullivan & Worcester in Boston, Supreme Court litigators at Jenner & Block in DC, and Kator Parks in DC for Dean Hara’s claim.

In March 2009, we filed Gill v Office of Personnel Management in the District of Massachusetts on behalf of seven married couples and three surviving spouses.  On equal protection grounds, we challenged DOMA’s discrimination against already married same-sex couples who were treated differently by the federal government from other married people in Massachusetts.  To emphasize that this was not another case about the constitutional right to marry, but about the federal government’s mistreatment of married same-sex couples, we infused our equal protection claim with facts about federalism.  After all, the federal government does not marry people and had always deferred to state determinations of marital status, abandoning that neutral rule only when it looked like states might allow same-sex couples to marry someday.

A few months later, Attorney General Coakley filed a DOMA challenge on behalf of the Commonwealth, and the cases proceeded in tandem to become the first-ever successful challenges to DOMA.  Then, after a delay occasioned by the President declining to defend DOMA in February 2011, the First Circuit in May 2012 issued the first appellate ruling striking down DOMA on the same bases as the Supreme Court later did in Windsor.

Like Romer v. Evans (1996) and Lawrence v. Texas (2003), Windsor reminds the country that constitutional promises apply equally to gay people.  Beyond those portions of the opinion holding DOMA unconstitutional as “a deprivation of the liberty of the person” under the 5th Amendment, there is also, as one commentator put it, the “music” in the decision fusing liberty and equality into a principle of “equal dignity.”  The Supreme Court ruled that DOMA made the marriages of same-sex couples “unequal” and “second class,” forcing them to live as married for state law purposes but unmarried for the purposes of federal law.  This discrimination affected “many aspects of family life, from the mundane to the profound,” and “instruct[ed] all federal officials, and … all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.”

Federal agencies are now implementing the Windsor ruling, and respecting the valid marriages of same-sex couples, wherever they reside, for federal purposes, including immigration benefits, civilian and military employee benefits, and income tax, among others.  While we are still some distance from a ruling ensuring the freedom to marry nationwide, other states now need to deal with “federally married” same sex couples and examine whether they want to continue discrimination against those couples for state purposes.  There is so much more to come, but without the beacon of equality from Goodridge, we could not have filed Gill and we would not be celebrating the end of federal marriage discrimination today.

As an attorney at Gay & Lesbian Advocates & Defenders, Mary Bonauto was lead counsel in Goodridge v. DPH, co-lead in Gill v. OPM, and participated on the Windsor team at the Supreme Court.