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Federal Benefits for Married Lesbian & Gay Couples

7/16/2013

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On June 28, 2013--two days after the U.S. Supreme Court issued its ruling in Windsor v. United States, the Office of Personnel Management (OPM) announced that spouses of married lesbian and gay federal employees were eligible for benefits. Who knew the feds could work that quickly.

That decision affects me directly because my spouse is employed by the U.S. Department of Labor. We hoped it would happen but never expected it so quickly. Betsy and I prepared the paperwork and submitted it over the weekend. Yesterday, Betsy received notice the change has taken place and will be effective June 30.

OPM decided that state of celebration controlled--it does not matter that we live in a nonrecognition state. I will receive the same benefits as every other spouse of a federal employee.

The Department of Homeland Security also issued an announcement that U.S. citizens can sponsor their foreign-born spouses for a family visa. This also applies to current green card holders.

The U.S. Department of Defense announced it is proceeding to provide all family benefits to lesbian and gay servicemembers and their families. As with OPM, DoD is looking at the state of celebration, not state of residence to determine eligibility.

One big fish still swimming around out there is the Internal Revenue Service. The IRS has issued no guidelines about how it will handle the situation. The only logical choice is "state of celebration". Anything else will create a tax nightmare for the IRS and affected taxpayers.

The Social Security Administration will be the outlier. The statute under which the SSA operates specifically states that "spouse" and "marriage" is defined by the state of residence. Congress will need to change the statute and it is unlikely that entity will take any action. The Republicans will fight any changes just because they can. Without congressional action the U.S. Supreme Court will need to get involved and that can take years. In the meantime, lesbian and gay married couples, living outside the equality zone, will find themselves without spousal survivor benefits.
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Post-Windsor & Perry

7/16/2013

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It's been three weeks since the U.S. Supreme Court issued the decisions in Windsor v. United States & Hollingsworth v. Perry. Immediately following the decisions everyone seemed to post something about what the decisions mean for married lesbian and gay couples, the LGBT community as a whole and the future of marriage in the U.S.

I decided to wait a bit, digest the decisions and think about the Supreme Court's ruling before commenting.

Make no mistake, the decisions have made a significant difference in many lives. Every married same-sex couple in one of the 14 marriage equality jurisdictions will now be considered just plain ol' "married" for federal and state purposes.

California's Proposition 8 is not being enforced. Contrary to the legal claims of the Prop 8 proponents, the U.S. District Court decision ruled Prop 8 unconstitutional. When a federal court issues such a decision, the matter can be appealed. If it is not appealed the decision stands and is enforceable. The Perry decision held the Prop 8 proponents had no right to appeal the trial court decision. The Supreme Court vacated the 9th Circuit judgment and that puts the trial court decision back on top. Now the California Supreme Court is set to determine whether the trial court's decision applies across the state or only in the two counties from which the plaintiffs hail. I find it difficult to think the court will decide the latter. It would make for an untenable situation in California. The Prop 8 proponents need to give it up. You lost!

Windsor presents other issues. Nothing in the decision restricts its application only to those married lesbian and gay couples living in a marriage equality jurisdiction. Justice Kennedy could have restricted the opinion but did not. Therefore, a reasonable argument can be made that the federal government must recognize marriages throughout the country and look only to the state of celebration (where the marriage took place).

Unfortunately, it seems clear the decision does NOT apply to civil unions and domestic partnerships. Lesbian and gay couples in the seven states that recognize those continue to enjoy only state benefits. And, the remaining 29 states that ban marriage equality, either through statute, constitutional amendment or both, continue to have the authority to discriminate against their lesbian and gay citizens where state benefits are concerned.
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    Author

    Joan M. Burda is a lawyer with a solo practice in Lakewood, Ohio. She limits her practice to estate planning. She writes on a variety of topics and is an adjunct professor at Case Western Reserve School of Law. Joan is nationally recognized for her work in addressing legal issues affecting the LGBTQ+ community.

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Joan M. Burda Attorney at Law • lgbtlaw@mac.com • 216.832.8825
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