Color Magazine Online

Melba and Beatrice are married in Massachusetts, but not in the eyes of the federal government

Beatrice Hernandez and Melba Abreu look forward to May and November. It's April that's taxing.

The Brighton pair is one of eight married couples and three surviving spouses in Massachusetts who are plaintiffs in a lawsuit challenging the federal Defense of Marriage Act (DOMA) and seeking legal equity for same-sex marriages.

DOMA prevents same-sex couples like Hernandez and Abreu from filing a joint federal tax return, among other things, which has cost the couple more than $25,000 in taxes since they wed in 2004. So while they celebrate their "legal" anniversary in May and their "heartfelt" anniversary in November, April 15 is not among the days they look forward to.

The lawsuit, filed by GLAD (Gay and Lesbian Advocates and Defenders) against the federal government on March 3, challenges Section 3 of DOMA, which became law in 1996, eight years before Massachusetts became the first state in the nation to allow same-sex marriages. Section 3 denies same-sex couples access to the 1,000-plus federal laws and programs in which marriage is a factor, such as Social Security benefits; "Married Filing Jointly" for tax purposes; family medical leave options; estate/death protections that allow a spouse to leave assets to the other spouse; and employment, retirement and death benefits for federal employees.

Hernandez and Abreu are specifically challenging their exclusion to file federal taxes as a married couple.

"We HAVE to file as married in Massachusetts," said Abreu, 53. "It's very confusing to try to figure out all the provisions that apply to you."

And it's not just confusing for them. From May 2004 to September 2008, more than 12,350 of the 172,000 marriages performed in Massachusetts were between same-sex partners and they all are affected by DOMA.

"The plaintiffs in this case are evidence of the translation of DOMA into real life," said Hernandez, 47, a web design consultant and writer working on two books. "We were aware of DOMA, but it's not until you come up against something in your life that you understand the full effects, as Melba and I have learned in the last four years to the tune of $19,700 in federal taxes. Those earnings have a place in our lives, as they do in anyone's life."

Abreu, the chief financial officer for a nonprofit research, consulting and advocacy organization, noted that including 2008 taxes which were recently filed, it is close to $25,000.

"The bigger issue is that for most people, marital status doesn't change at the federal level," Hernandez said. "It could be $1,000 and it would still bear the same impact. We are not seen as equal citizens by the federal government.

"It's a daunting step to take," she added. "We are intensely private people. That's our biggest investment in this and it's very contrary to taking this action. But we're compelled to do so for the well-being of our future and our family."

It is the ideas of equity and fairness that are the driving forces behind the couple's decision to mount a legal challenge to the law, as is a shared sense of responsibility to family - the family that is each other and others who have sacrificed for their benefit.

Abreu, who is looking forward to the couple's 22nd anniversary in November, says they have only each other to rely upon, and in retirement, illness or death, they don't have the same safety nets that other spouses have.

"We have the responsibility to our family to be a part of the lawsuit. We are not looking forward to suing the federal government. That's huge," said Abreu, a naturalized American citizen who was born in Cuba.

"It's a little surreal," added Hernandez, who was born in America to Cuban immigrants. "What we love so much is the sense of fairness that is part of being an American. A sense of fairness is what part of being an American stands for. This is not a gay issue, it's an American issue."

Gay marriage is still a hotly contested issue among Americans. In November, California voters ended gay marriage with a referendum vote. But in the last few months, four states have joined Massachusetts in allowing gay marriage: Iowa, Connecticut, Maine and Vermont. It could also soon become law in New Hampshire.

GLAD says that while the increasing number of states making gay marriage legal is encouraging, the lawsuit remains focused on federal law. The federal government has always deferred to state determination of marital status, according to the GLAD website. However, Section 3 of DOMA overrides that determination with regard to same-sex couples only.

This, they say, makes them second-class citizens who are expected to make the same contributions, but are not afforded the same rights as other married people in the U.S.

"My parents left everything behind to try to make a future of prosperity for their children ... all the work done and the life created by generations before them - to truly begin a new life," said Hernandez. "For me, I have the deepest gratitude for my parents and what they did to make a better life for their children, and I ask myself, how do I repay that? " Hernandez said. "One way is by seeking fairness for the equitable pursuit of a life. Equality is worth fighting for."