The Department of Justice released a long-awaited memorandum on June 20, 2014 on the extent to which federal benefits are available to married lesbian and gay couples. http://www.justice.gov/iso/opa/resources/9722014620103930904785.pdf


For the most part, all federal benefits are available. There are two major exceptions: Social Security and VA benefits. 


The Social Security Administration (SSA) and the Department of Veterans Affairs (VA) are legally required to use a person's state of domicile to determine the validity of a marriage and whether a spouse is eligible for survivor benefits. This means these agencies use a state's definition of marriage. 


All other federal agencies use the state of celebration to determine whether a marriage is valid. If the marriage was valid in the state where it was celebrated, it is valid for federal purposes.

The IRS, for example, recognizes all same-sex marriages regardless of where the couple lives. Therefore, all married same-sex couples must file as "married' for federal tax purposes.

The U.S. Supreme Court decision in Windsor does not affect the laws that govern SSA and the VA.

The only way to change the SSA or VA law is with an act of Congress or a court decision. The Supreme Court could resolve the issue by requiring all states to recognize out-of-state marriages by lesbian and gay couples.

The Respect for Marriage bills are pending in the U.S. House of Representatives and the U.S. Senate. Contact your Congressional Rep and U.S. Senators and encourage them to support this bill. However, as a practical matter and given the disfunction that exists in Congress, it is unlikely the Republicans will permit the SSA and VA laws to be changed. I expect it will take a lawsuit to resolve the situation.

In the meantime, if you think you are entitled to benefits, file a claim. If denied, file an appeal. This preserves your right to back benefits when the situation is resolved. It also means you are positioned to take the matter to federal court and raise the constitutional issues.

Lawsuits are pending in every state that does not recognize marriage equality for lesbian and gay couples. For now, the federal district courts have been unanimous in deciding that bans on marriage equality and recognizing out-of-state lesbian and gay marriages are unconstitutional. The battles move to the Federal Circuit Court system. 

The 6th Circuit Court of Appeals will hear appeals from every state in the Circuit: Ohio, Michigan, Kentucky and Tennessee. Until the appellate courts issue decisions in the marriage cases, the status quo remains in effect. This is neither unusual nor is it unfair. It is the way court cases progress through the judicial system. We need patience to see it through.

The United States Supreme Court will be the final stop for the question of whether individual states can refuse to permit lesbian and gay couples to marry and refuse to recognize marriages entered into in other states. I think the court will address the issue in the session beginning the first Monday in October 2015. That would mean a decision from SCOTUS by June 2016. 

While many see this as slow-moving, we have gone from no recognition and DOMA in 2004 to 20 marriage equality jurisdictions in 2014--with more on the way. The law usually does not move this quickly--neither does public opinion. But the American people, by nature, are fair-minded. They have come to see it makes no sense to continue the discrimination. It shows people are willing to change.

Kudos to the pioneers in the movement for marriage equality. People like Mary Bonauto with GLAD in Boston--considered by many to be the "Godmother" of marriage equality. It is important to maintain the momentum.

And, on a closing note, come to Cleveland this August (9-16, 2014) for the 2014 Gay Games. Volunteer or compete but come to play. The website is www.gg9cle.com or follow on Twitter @GG9Cleveland.