Uncertainty remains for same-sex couples in many states

McClatchy Washington BureauJune 26, 2013 

  • Jurisdictions that allow same-sex marriage:




    District of Columbia






    New Hampshire

    New York state

    Rhode Island


    Washington state

— The U.S. Supreme Court’s decision Wednesday to strike down the heart of the Defense of Marriage Act means that the federal government can grant a vast array of benefits to same-sex couples who are legally married in at least a dozen states.

The ruling still leaves decisions on who’s married and who isn’t to the states. That creates uncertainty for same-sex couples who married in one state but live in any of at least three dozen states that don’t recognize their marriages.

At stake are more than 1,100 federal benefits, including who’s eligible for Social Security survivor’s benefits, immigration benefits, military benefits and even whether married same-sex couples may file joint tax returns. In most cases, the answer may depend on where they live.

“It’s a huge sleeper issue that’s now going to come front and center,” said Steve Sanders, an associate professor of law at Indiana University who’s followed the cases that led to Wednesday’s ruling, Windsor v. United States.

Sanders and other legal experts say President Barack Obama and Congress could clarify the law. But some predict that the issue ultimately will find its way back to the Supreme Court. “There’s going to be a lot of work for lawyers,” Sanders said.

For Edith Windsor, Wednesday’s ruling is a victory. Windsor, 84, paid a $363,000 inheritance tax when her wife, Thea Spyer, died in 2009. They were married in Canada, and the state where they resided, New York, recognized their marriage. Under federal law, legally married couples are exempt from the tax Windsor paid.

With Wednesday’s ruling, the federal government owes Windsor a refund .

But it’s unclear how the law will apply outside the 13 states, plus the District of Columbia, that allow same-sex marriage. Some federal agencies might make the determination that married same-sex couples are married regardless of where they live. Others might consider as married only those who live in states where their marriages are legal.

“I’ve got to hope the people who work at these agencies have thought about this,” said Will Baude, a fellow at the Constitutional Law Center at Stanford University. “This is not a problem they have had to confront before.”

For tax purposes, for instance, the Internal Revenue Service looks at the state of residence when it determines who may file a joint return. If a same-sex couple were married in Connecticut but live in Kentucky, they might still have to file separately. The same couple also might not qualify for Social Security survivor’s benefits, which they’d receive in a state where same-sex marriage is allowed.

Chad Griffin, the president of the Human Rights Campaign, the nation’s largest gay-rights group, called on Obama and Congress to make sure that married same-sex couples don’t fall through a legal crack.

"Federal recognition for lesbian and gay couples is a massive turning point for equality, but it is not enough until every family is guaranteed complete access to the protections they need regardless of state borders,” Griffin said in a statement.

Sen. Dianne Feinstein, D-Calif., planned to reintroduce a bill to ensure that all married same-sex couples are recognized for federal purposes. Feinstein expected to have at least 41 co-sponsors for the bill, called the Respect for Marriage Act. Fifty-three senators, including three Republicans, have publicly expressed support for same-sex marriage.

“Because of inequities in the administration of more than 1,100 federal laws affected by DOMA, it is still necessary to introduce legislation to repeal DOMA and strike this law once and for all," Feinstein said Wednesday in a statement.

“Congress is going to have to grapple with the implications of the DOMA decision,” Sanders said. “Or else the courts are going to have to step in.”

Federal workers now may apply for health and pension benefits for their same-sex spouses, but maybe not in every state. Married same-sex couples in the military can qualify for base housing, relocation assistance, family support services and veterans benefits at least in the states that allow them to marry. But members of the armed forces frequently move from state to state.

“Couples in the military who work for the federal government are going to have the most unresolved questions,” said Baude, who clerked for Chief Justice John G. Roberts Jr.

In a statement Wednesday, the Defense Department welcomed the Supreme Court’s decision and said it would consult with the White House and federal agencies on how to implement it, "as soon as possible."

"The Department of Defense intends to make the same benefits available to all military spouses – regardless of sexual orientation," the Pentagon said. "That is now the law and it is the right thing to do."

For all the uncertainties it creates, the court’s decision eliminates one: whether same-sex spouses are eligible for immigration benefits. Until the ruling Wednesday, thousands of gays and lesbians born outside the country were living in legal limbo because though they were legally married to U.S. citizens, the federal government wouldn’t allow them to apply for green cards.

The issue came up during the recent Senate immigration debate. Some Republicans threatened to withdraw their support from the bill if it included benefits for binational same-sex couples. Democrats set aside the provision, hoping the Supreme Court would resolve it.

Because immigration is a federal issue, state law won’t matter when same-sex couples apply for green cards. Lavi Soloway, a New York immigration attorney for many such couples, called the court’s ruling “clear as a bell.”

“This is a watershed moment,” he said. “It will bring gay and lesbian Americans into our immigration system.”

Email: ctate@mcclatchydc.com; Twitter: @tatecurtis

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