Local couple aiming to test marriage law in US Supreme Court

If Massachusetts begins issuing civil marriage licenses to same-sex couples, two local men say they will travel to the state for a spring wedding and challenge the federal Defense of Marriage Act when they return to Pennsylvania as newlyweds.

“There needs to be a test of [DoMA] in the US Supreme Court,” attorney Gordon Fisher believes. “So, Wes and I will be married in Massachusetts. We will then file a joint federal tax return, or apply for Social Security benefits, or die and claim a federal estate tax exemption—and we will be denied those benefits because the federal Defense of Marriage Act says ‘no’ to same-sex marriages.”

Fisher’s longtime partner is Wes Scott, a history professor at the University of Pittsburgh.

The Massachusetts’ Supreme Judicial Court ruled in November that it is discriminatory for the state to deny marriage rights to same-sex couples. The court gave the Massachusetts Legislature 180 days to amend the state’s civil marriage statutes accordingly, paving the way for a legal challenge that may lead to the US Supreme Court.

According to Harry Gruener, a professor of family law at the University of Pittsburgh, the Massachusetts ruling, unlike Vermont’s civil unions law, addresses the concept of marriage as a union between two people regardless of the gender of the individuals. It also differs from rulings in similar cases in Hawaii and Alaska because, in the Massachusetts case, the Legislature has no option but to follow the court’s instructions.

“The Legislature went and passed a constitutional amendment,” Gruener said, “and that’s how they made moot the dispute in Alaska and Hawaii.”

Gruener added that there are “so many hoops the Legislature in Massachusetts must jump through in order to alter the state’s constitution they can’t do a constitutional procedure until about 2005.” But that reality hasn’t stopped critics of the court’s ruling from considering amending the constitution, he noted.

Vermont is currently the only state that provides civil unions for same-sex couples. But the Vermont statute falls far short of the protections of marriage, supporters of same-sex marriage contend, particularly considering the additional restrictions imposed by DoMA. In 1996, DoMA granted states the right to define matrimony within their own jurisdictions, but expressly described marriage as “between a man and a woman.”

According to Fisher, Vermont unions do not grant federal estate tax deductions, the right to file joint federal income tax returns or the right to collect Social Security.

For example, Pennsylvania’s exemption on inheritance tax would not apply to a couple with a civil union from Vermont. Fisher noted that the Massachusetts ruling raises the stakes in such circumstances by specifying marriage, rather than offering an alternate institution.

“[The ruling] makes a clear distinction between religious law and civil law, which has been the problem all along,” Scott said. “In fact… [President] Bush released a statement that he would defend the ‘sacred bond of marriage’ or some such phrase, which clearlyshows how he continues to blend church and state in his discharge of his presidential duties.”

            But not everyone feels as strongly about the need for same-sex marriage rights.

“What I would like to see is for single people not to be punished economically,” said Linda DeVos, a single woman living in Mount Lebanon. “As for the hetero-normalizing [effects of same-sex marriage], having lived in both worlds, I don’t care for being typecast. I prefer to see myself as a woman, period.” 

Another woman, an Edgewood homeowner and co-parent who did not want to be identified, said she has found ways to get around most of financial inequities faced by same-sex couples. “[But] what I can’t do is get [my partner’s] benefits. We can’t even get on the same car insurance,” she said.

She added, however, that she doesn’t see herself leaving Pittsburgh for Vermont or Massachusetts as an alternative to such restrictions. “Younger people might be drawn to those areas because they’re more gay-friendly, but it’s not compelling enough to make us leave. We just kind of assume [legalized same-sex marriage is] going to happen.”

To date, 36 states, including Pennsylvania, have enacted legislation prohibiting same-sex marriages or the recognition of same-sex marriages performed in another jurisdiction. Under the full faith and credit clause of the US Constitution, states are generally required to recognize and honor the public laws of other states, but DoMA bars federal recognition of same-sex marriages and allows states to do the same.

But for couples like Fisher and Scott, tying the need for same-sex marriage to economic issues misses the point.

“I look forward to the day when my friends and neighbors will read the Pittsburgh Post-Gazette wedding announcements without a thought that some couples are white, some Black, some Asian, some interracial, some heterosexual and some homosexual,” Fisher explained.

“And I pray that if I am ever old and sick, Wes will not need to go through the indignity of long explanations or producing notarized documents to assure hospital personnel that he belongs as near to my side as he is in my heart. That’s why all of this is so important.”

The Q Archives and articles like this are republished here by the kind contribution of Tony Molnar-Strejcek, the publisher of Pittsburgh’s Out. Maintaining the cultural history of Pittsburgh's LGBTQ Community is made possible by contributions by readers like you.