Posted in: Civil Unions & Domestic Partnerships
On June 26, 2013, the United States Supreme Court (in U.S. v. Windsor) held section 3 of the federal Defense of Marriage Act (DOMA) unconstitutional. What does this mean for legally married same-sex couples? The answer may depend upon a number of factors, to be discussed below.
DOMA, sections 1 and 2: Before Windsor, DOMA had 3 sections. The first simply gives the Act its name, and the second provides that no state is required to recognize same-sex marriages validly performed in other states. Both of these sections remain intact after Windsor.
Thus, each state is still free to prohibit the performance of same-sex marriages within the state and to refuse to recognize same-sex marriages legally performed in another.
DOMA, section 3: The third section (the only section struck down by Windsor) provided definitions of the words “marriage” and “spouse” to be used in the interpretation of any federal law. “Marriage” was defined only as “a legal union between one man and one woman as husband and wife,” and “spouse” was defined only as “a person of the opposite sex who is a husband or wife.”
The result of these definitions was that more than 1100 federal benefits available to legally married heterosexual couples were denied legally married same-sex couples. Simply put, there are 1100-plus federal laws that grant certain rights only to “married” persons. But, same-sex married couples were not considered “married” for purposes of these laws because section 3 of DOMA did not include them in the definition.
Windsor has changed this, but only to an extent. Now, many of the federal rights previously available only to heterosexual couples are available to legally married same-sex couples. *
The answer to this question is not a simple one and will vary with the state in which a couple lives and the particulars of each federal law. Generally speaking, the invalidation of section 3 of DOMA requires the federal government to recognize as a marriage any legally-performed same-sex marriage that is recognized as valid by the state in which the same-sex couple lives.
The difficulty occurs with respect to same-sex couples who were legally married in one state but now live in a state that fails to recognize the validity of same-sex marriages (a non-recognition state). Neither Pennsylvania nor New Jersey recognizes the validity of same-sex marriages. Though legally married same-sex couples living in either of these states may qualify after Windsor for some federal benefits offered to “married couples,” they will not qualify for many others.
State of Residency Rule: The result will depend on which state a particular statute looks to in order to determine the marital status of a couple. If a statute looks to the state in which the couple lives (the state of residency or domicile rule), couples living in non-recognition states will be denied the federal rights granted by that particular statute. Couples living in states that do recognize their marriages, however, should now be entitled to all federal rights granted to “married” persons. The availability of these rights should last as long as the couple lives in a state that recognizes their marriage.
State of Celebration Rule: If the law looks to the place where the marriage took place to determine marital status (the place of celebration rule), the couple will be considered married for purposes of that particular statute as long as the marriage was legally performed.
These are the most common methods of determining marital status, but are not the only methods used by the federal government. (See, for example, the discussion relating to Veterans’ Spousal Benefits, below.) In addition, certain agencies may be entitled to change their methods of determining marital status. Thus, the probable effects of Windsor on particular federal rights may change if the agency in question alters its method of determining marital status.
Remember, there are more than 1100 federal laws affected and exceptions may exist that will not be addressed by this article. Moreover, the probable effects described below are not guaranteed. This is a new law with many complicated factors that will need to be ironed out over time.
The IRS has a practice of determining marital status on the basis of a person’s place of residence. If the IRS continues this practice and you live in a state that recognizes your same-sex marriage, coverage for your same-sex spouse will be treated in the same way as coverage for an employee’s opposite-sex spouse and will no longer be taxable income. If you live in a non-recognition state, however, you will remain ineligible for this tax benefit, even after Windsor.
(Note: The invalidation of DOMA section 3 does not affect a private employer’s right to continue to deny most employment benefits to an employee’s same-sex spouse. The change discussed above relates only to the tax treatment of benefits that are offered the same-sex spouse of a private employee.)
Under current law, your eligibility for FMLA will be based on your state of residency. If you live in a state that recognizes your legal same-sex marriage, you may be considered married for FMLA purposes and will be entitled to FMLA leave to care for a sick spouse. If you live in a non-recognition state, you will not be entitled to FMLA leave, even after Windsor.
The IRS currently looks to the state of residence to determine marital status. If you live in a state that recognizes your same-sex marriage, you should be considered married for purposes of filing federal income taxes. If you live in a non-recognition state, you will not be allowed to file as a married person.
The Supreme Court held that Windsor, who lived in a state that recognized her same-sex union as a marriage, must be considered a surviving spouse for purposes of the estate-tax exemption. Now, under the IRS’s current practice of looking to the state of residency, legally married same-sex couples living in states that recognize their same-sex marriages are entitled to the same federal estate-tax exemptions available to heterosexual married couples. The exemption will remain unavailable, however, to surviving spouses living in non-recognition states.
Because military law looks to the place a marriage was performed to determine marital status (the place of celebration), as long as your same-sex marriage was legally performed in a state that allows same-sex marriage, you and your same-sex spouse should be entitled to these benefits no matter where you live.
What does this mean after Windsor?
a) If you lived in a state that recognized same-sex marriage at the time you got married, and you still live in such a state, you should now be entitled to veterans’ spousal benefits previously granted only to heterosexual married couples;
b) If you currently live in a non-recognition state, but lived in a state that did recognize your same-sex marriage at the time you got married, you should be able to get the same veterans’ benefits available to married heterosexual couples;
c) If you lived in a non-recognition state at the time you got married, but lived in a state that did recognize your marriage at the time the benefits took effect, you should now be able to receive your veterans’ spousal benefits regardless of where you currently live; and
d) If you lived in a non-recognition state both at the time you got married and at the time the benefits took effect, you will not be able to receive veterans’ spousal benefits even if you currently live in a state that recognizes same-sex marriage.
* It is important to note that these rights are available only to legally married couples. In other words, their marriages must have been validly performed in jurisdictions that allow the performance of same-sex marriages. Moreover, DOMA relates only to federal rights granted under federal law. It has no effect upon state law. States are as free as ever, after Windsor, to grant or deny same-sex married couples the same state rights they grant to heterosexual married couples.
Note: The rights of Federal Employees are discussed in Part 2 of this posting.