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Married and Gay, but Not Eligible for Full Benefits

Court overturns same-sex marriage ban. Will all couples enjoy the same safety net?

Two women hold hands after getting married at city hall in San Francisco, California.

— Kimberly White/Corbis

An ongoing conversation
The issue of same-sex marriage is far from settled. The Massachusetts ruling applies only to the approximately 16,000 same-sex couples married in that state. Many experts say the ruling is likely to be appealed by the U.S. Justice Department. If the appeal finds its way to the Supreme Court and the ruling is upheld, same-sex marriages throughout the country would be protected under the Constitution, just as interracial marriages are now.

In all, five states — Massachusetts, Vermont, Connecticut, New Hampshire and Iowa — and the District of Columbia have legalized same-sex marriage. Three other states — Rhode Island, New York and Maryland — recognize same-sex marriages from other states even though they don’t offer them to residents.

Eight other states have civil unions or domestic partnerships that offer all or most of the rights and responsibilities of marriage. One of those is California, where the tug-of-war over same-sex marriage has been particularly fierce. In 2008, the California Supreme Court legalized gay marriage. Opponents quickly placed an initiative, called Proposition 8, on the ballot to bar same-sex marriages. When Prop 8 passed by a narrow margin, proponents of gay marriage swiftly challenged the initiative as unconstitutional.

A federal district judge is expected to rule soon on whether to uphold or strike down Proposition 8. If he finds that the ban on same-sex marriage violates the federal Constitution’s guarantee of equal protection, the decision would have nationwide implications, because a majority of states have statutes or amendments in place restricting marriage to heterosexuals. Such a ruling would almost certainly make its way to the U.S. Supreme Court.

Though the outcome of marriage equality is far from certain, its advocates remain confident that it will ultimately prevail. “Each of these rulings is part of a long conversation under way about marriage rights,” says Martha Ertman, a professor of law at the University of Maryland and herself part of a same-sex marriage. “It’s worth remembering that it wasn’t all that long ago when some states barred interracial marriages. We would never accept that now, legally, politically, culturally or socially. I think the same thing will happen with same-sex marriages.”

Holly Puterbaugh, 64, a professor emeritus at the University of Vermont, and her spouse, Lois Farnham, 65, a retired emergency room nurse, have learned to be patient. They became a couple in 1972. In 1997, they were one of three couples who filed suit in Vermont demanding their constitutional right to be married. The landmark case resulted in the first civil unions in the country. In 2009, Vermont scrapped civil unions and approved same-sex marriage. Puterbaugh and Farnham were married.

But because their marriage is not recognized by the federal government, they can’t file federal income taxes as a married couple. They have to pay taxes on spousal benefits that heterosexual couples receive tax-free. And when they go on Social Security, they will receive less than identical heterosexual couples. As Farnham says, “That’s just plain unfair.”

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