DOMA, One Year After Marriage Ruling

by Nossaman LLP

Originally Published in the Daily Journal - June 26, 2014.

It hardly seems like it's been an entire year since the U.S. Supreme Court struck down a huge portion of the so-called Defense of Marriage Act (DOMA), which precluded the federal government from recognizing the legally valid marriages of same-sex couples living in the U.S. Unfortunately, the decision has yet to be fully implemented.

I had the distinct privilege of meeting Edie Windsor earlier this year, and she is best described as a barely-five-foot-tall elegant dynamo who wouldn't take "no" for an answer. After her wife passed away, to whom she had been legally married in Canada, she was beset with a more than $363,000 estate tax by the federal government - a tax with which she would have never been charged had her spouse been male.

In United States v. Windsor, the U.S. Supreme Court held that the federal government cannot discriminate between legally married couples, whether they be same sex or opposite sex. As a result, Windsor's tax liability was erased. And thanks to her bravery and years-long battle, other discriminatory laws affecting legally married same-sex couples across the nation have fallen to the wayside.

Windsor amounted to a sweeping decision affecting a multitude of federal programs and agencies from which married couples regularly receive benefits. Those agencies include the Department of Agriculture, the Department of Defense, the Department of Education, the Department of Health and Human Services, the Department of Homeland Security, the Department of Justice, the Department of Labor, the Department of State, the Department of Veteran's Affairs, the Federal Election Commission, the Federal Retirement Thrift Investment Board, the General Services Agency, the Internal Revenue Service, the Office of Government Ethics, the Office of Personnel Management, the Peace Corp, the Pension Benefit Guaranty Corporation, and Social Security Administration - to name a few.

It is worth singling out at least one of these agencies - the Department of Homeland Security - which now allows same-sex married couples to be treated the same as opposite-sex couples when applying immigration rules and regulations. "U.S. citizens and lawful permanent residents can now file petitions to sponsor their same-sex spouses for family-based immigrant visas, and can file fiancé or fiancée petitions based on their engagement to a person of the same sex." In fact, U.S. Citizen and Immigration Services is now making a concerted effort to identify and re-open all applications that were originally denied on the basis of Section 3 of DOMA. This is the good news.

The bad news is that, despite the fact that legally married same-sex couples are now enjoying many of the federal benefits previously denied to them (including many military and financial assistance benefits), a gap still remains in two important agencies' regulations that continues to preclude the granting of benefits to these deserving married couples.

According to a June 20 Department of Justice report on the implementation of the Windsor decision, many federal agencies needed to, and have, implemented a "place of celebration" rule rather than a "place of residence" rule in order to confer the federal benefits on those affected. The new "place of celebration" rule allows for benefits to be provided so long as the marriage was legal in the place where the ceremony was performed. However, the Social Security Administration and the Department of Veterans Affairs cannot adopt such a rule because benefits administered by those agencies are statutorily based on the applicant's place of residence. These agencies impact the daily lives and financial security of those most vulnerable in our society - veterans and the elderly - who cannot receive the full range of Social Security and veteran's benefits to which they are entitled.

The DOJ report noted that "The Social Security Administration and the Department of Veterans Affairs are required by law to confer certain marriage-related benefits based on the law of the state in which the married couple resides," which currently prevents those agencies from extending full benefits to legally married same-sex couples who live in non-recognition states like Texas, Oklahoma and Alabama, where the validity of their legal marriages is ignored. We need further legislative action so that a uniform "place of celebration" rule can be enacted for all federal agencies and federal benefits can be provided to all legally married couples, regardless of the state in which they reside.

Several bills are currently pending that require legislative approval: the Respect for Marriage bills introduced by Sen. Dianne Feinstein and Representative Jerrold Nadler; the Social Security and Marriage Equality Act introduced by Sens. Mark Udall and Patty Murray; and the Veterans Affairs' amendment proposed by Sens. Udall and Jeanne Shaheen. Only through the enactment of these bills can veterans, the elderly and disabled Americans obtain the essential benefits they have earned for themselves, and their spouses, without regard to where they live. The imbedded statutory prohibitions should not thwart the equal treatment of American citizens as we await the next U.S. Supreme Court ruling that will eviscerate DOMA completely and require all states to recognize marriages performed in the 19 states (and counting) where same-sex marriages is already legal. It's only a matter of time, to be sure, but time is a precious commodity for those who need those denied benefits now.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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