The mess that is federal benefits post-DOMA

Now that Section 3 of the Defense of Marriage Act (DOMA) has been struck down the Supreme Court, what will this mean for the provision of federal benefits to legally-married gay couples?

DOMA, you’ll recall, among others, forbade the federal government from providing any of the over 1,100 benefits of federal marriage to legally-wed gay couples.

Now that the Supreme Court has struck down that specific provision of DOMA, the big question is which benefits gay couples will get, and how do they get them?

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Outside the Supreme Court during the Prop 8 hearings in March of 2013. Photo by ©John Aravosis.

It’s a bit complicated.  The President has already indicated that he’s moving ahead with determining how to provide the benefits to gay couples, and the Pentagon is doing the same.  But here’s why it’s complicated.  The question many have had is: Does it matter which state you live in?

In other words, if you live in Virginia, a bigoted anti-gay state that does not permit gays to marry, or recognize legal marriages of gay couples performed in other states, what happens when a Virginia couple legally weds in another state and then comes back to Virginia to live?

It only matters to the degree that federal benefits law looks at the definition of marriage as being that of the state in which you reside.  And apparently, some federal law does just that.  The biggest concerns about to be Social Security benefits and taxes, no small deal.

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Outside the Supreme Court during the Prop 8 hearings in March of 2013. Photo by ©John Aravosis.

Chris Johnson at the Blade reports:

Some of these benefits, like Social Security survivor benefits and tax benefits, are in question because federal law governing these issues looks at a state where a couple lives as opposed to whether they were legally married. That means a gay couple that marries in a state like New York, but moves to Florida, won’t be able to apply for these benefits while living there.

The ACLU says that the President has some wiggle room here, but they weren’t entirely clear what wiggle room for which programs:

James Esseks, director of the American Civil Liberties Union LGBT Project, said while explaining the decision that the Obama administration can interpret the rulings in a broad manner to ensure all federal benefits flow to married same-sex couples regardless of the state in which they live.

In almost all contexts, the Obama administration has the ability and the flexibility to move to a rule where they look to the law of the state in which you got married, not the state in which you live,” Esseks said. “So we expect and hope that the federal government is going to update those rules … and that would mean that once you get married, you’re married for federal purposes forever. That’s what we think the right rule is, and that’s the rule we think the administration can get to.”

One of the areas in which there is now great hope is immigration. Up until now the legally-wed foreign-national spouses of gay Americans had zero status under immigration law, and were deported.  As I reported earlier, in at least one immigration court in New York, the judge put a hold on deportation proceedings of a gay Colombian man married to an American, as a result of the DOMA decision.

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Outside the Supreme Court during the Prop 8 hearings in March of 2013. Photo by ©John Aravosis.

And Chris at Blade confirms that immigration law looks to the marriage law in the state in which you were married, not the state in which you live.  Immigration Equality has weighed in as well:

Following the U.S. Supreme Court’s landmark ruling striking down a core provision of the federal Defense of Marriage Act (DOMA), lesbian and gay Americans will now be eligible to apply for green cards on behalf of their foreign national spouses, the organization Immigration Equality announced today. The court ruled today, in United States v. Windsor, that Section 3 of DOMA, which prohibited the federal government from conferring benefits to married same-sex couples, is unconstitutional. That provision of the law made it impossible for lesbian and gay couples to receive immigration benefits, including green cards.

Another interesting point, beyond which state to look to, is how benefits will change for gay married couples once their marriages are recognized by the feds.  On taxes, if the gay couple makes a lot, their taxes might just go up, according to Mike Anderson at NerdWallet.  He explains in his post, but here’s a nifty chart he included:

tax-domaMore on tax law and gay couples in a post-DOMA world here.

One person directly affected by today’s decision is Guardian writer Glenn Greenwald, who has been living in Brazil for eight years wit his partner, David Michael Miranda because of US immigration laws that were unfriendly to gay couples due to DOMA.  Glenn says he’s not yet sure whether he’d move back. In party, due to the entire Snowden affair and the potential that Congress or the administration might try to come after him for publishing Snowden’s classified documents.

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There will be much more on this issue in the coming days. Stay tuned.


Follow me on Twitter: @aravosis | @americablog | @americabloggay | Facebook | Google+ | LinkedIn. John Aravosis is the editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown (1989); and worked in the US Senate, World Bank, Children's Defense Fund, and as a stringer for the Economist. Frequent TV pundit: O'Reilly Factor, Hardball, World News Tonight, Nightline & Reliable Sources. Bio, .

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  • Stev84

    For the vast majority of them it’s the state of celebration that counts. That’s the default when nothing is specified. The ones that are explicitly restricted to the state of residence are few.

  • Stev84

    The US is the perfect example of why this shouldn’t really be a state’s issue. It’s a highly ridiculous and completely impractical system. Something right out of the 18th century that doesn’t work at all in a modern, highly mobile, society.

    It becomes even more absurd when you consider travel. It’s one thing to say that residents of a state are fully under that state’s laws. But if you just drive through another state, they can’t just say that you aren’t married anymore when you don’t even live there..

  • Mike_in_the_Tundra

    We’ve been paying extra taxes for a long time. Several years back, my employer made the wonderful decision to extend married benefits to domestic partners. We jumped at the chance of getting medical, dental, and vision insurance for my husband (we had a church ceremony which was not recognized by any government). The coverages were great, and my employer paid 90% of the premiums. I had to pay state and federal taxes on my employer’s contributions. I also had to pay more to FICA. I paid a lot of taxes. Married employees didn’t have to pay those taxes.

  • chris10858

    If having a higher tax liability is the price we pay to have the right to marry , I for one will gladly write out that check to the IRS.

  • RichardSF

    Since there are +/- 1100 items and since the list of them is available on the Internet, there shouldn’t be much of a problem dealing with them. Each will of course require individual attention since not all of them are in the same US Code section. It will take a little time; but you’d think work would have already started on this when the President and the administration made their stand on DOMA. People should have at least made some educated guess that DOMA would be stricken from our laws. But we’re dealing with the Federal government here, an organization not known for speed or efficiency; and its many departments and subsections sometimes don’t communicate appropriately with each other. Even so, people need to get on the stick here..

  • http://www.rebeccamorn.com/mind BeccaM

    Oh, I know. The litigation has only just begun. In attempting to overturn DOMA, but not find for a constitutional right to marriage for all U.S. citizens regardless of sexual orientation, SCOTUS opened a can ‘o worms.

  • Jim Olson

    Oh, you just wait. Some Federal Customs official working at a port of entry in Florida who loves Jesus a whole lot is going to insist fairly soon that there be two customs forms. TSA will get involved. It will be ugly.

  • Hue-Man

    Canucks are just fortunate. Here’s section 2 of the (federal) Civil Marriage Act: “2. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.” I compare this to today’s decisions and future controversies. This definition cascades through every aspect of Canadian law – estates, taxation, immigration, adoption, divorce, children’s law, employment, insurance, annuities, pensions, human rights – without disturbing Canadian and UK legal precedents and interpretations. (On the customs declaration referred to above, here’s the Canafdian solution; hint no relationships. http://www.cbsa-asfc.gc.ca/publications/forms-formulaires/e311-eng.pdf )

    Count on the TeaParty/GOP to make the implementation of these rulings as painful as possible – remember, gays and lesbians can’t suffer enough!

  • http://www.rebeccamorn.com/mind BeccaM

    More issues for the feds to clarify, but according to the various reports — and to forestall any followup questions — for most federal issues, the only thing that matters is whether you were legally married. Not where you live.

    There are some laws that are based on where you live (such as specific Social Security benefits) but they’ve already been saying that’s being worked on at a regulatory level.

    Seriously though, we have much bigger fish to fry than whether someone has to fill out two customs forms or one. I rather doubt, since DOMA’s been overturned, if a Federal Customs employee working at a port of entry in Florida is going to raise a ruckus if a couple submits one family form rather than two separate ones.

  • MikeHoward

    Question #3 on the Custom form says “Number of Family Members traveling with you”. Wouldn’t you have to say none if you were a legally married couple living in Florida?

  • http://www.rebeccamorn.com/mind BeccaM

    Customs is a federal organization. Presumably one.

  • MikeHoward

    If a gay couple return from an overseas vacation and go though customs in Miami, would they fill out one Custom form if they live in Florida and not a full Federal Equality State?

  • http://www.rebeccamorn.com/mind BeccaM

    It’s gonna be messy…but hopefully it’ll mostly be going in the right direction.

  • mark_in_toronto

    Glad to hear about this.
    Now . . . don’t stop there . . . make it a Federal law.
    It would obviously make things easier anyway.

  • http://adgitadiaries.com/ karmanot

    First thought on this wonderful news” F**k you Clinton.

  • cole3244

    congrats to all our fellow citizens who have been waiting for this day, rejoice and celebrate but be careful, please.

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