DOMA decision leaves uncertainty

McClatchy Washington BureauJune 27, 2013 

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

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.

“It’s really quite sweeping. It makes marriage in Washington full marriage as opposed to kind of skim-milk marriage,” said David Ward, an attorney with Legal Voice in Seattle, paraphrasing a comment Justice Ruth Bader Ginsburg made during oral arguments on the case.

But 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.

“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.

After the decision, couples had questions for Seattle family lawyer Jill Mullins about legal issues affecting, for example, a couple with citizenship in two different countries or a mother or father who isn’t legally considered their child’s parent when traveling to states without same-sex marriage. She told them the ruling affects immigration status but not parental status.

Once the ruling takes effect after a likely 25-day delay, Mullins said it also would mean health benefits for federal workers and for employees of large private companies whose insurance plans are regulated under federal rather than state law. And employees who already receive such health benefits would no longer be taxed on them, she said.

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 still might 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.

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.”

“It will bring gay and lesbian Americans into our immigration system,” he said.

Staff writer Jordan Schrader contributed to this report.

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