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?


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.


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.


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.


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

CyberDisobedience on Substack | @aravosis | Facebook | Instagram | LinkedIn. John Aravosis is the Executive Editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown; and has worked in the US Senate, World Bank, Children's Defense Fund, the United Nations Development Programme, and as a stringer for the Economist. He is a frequent TV pundit, having appeared on the O'Reilly Factor, Hardball, World News Tonight, Nightline, AM Joy & Reliable Sources, among others. John lives in Washington, DC. .

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