News
Fed’l benefits issues linger post-DOMA for gay couples
Questions remain on Social Security, taxes, veterans benefits and family leave
Federal benefit issues for gay couples continue to linger after the Supreme Court ruling against the Defense of Marriage Act (Washington Blade photo by Michael Key).
Following the Supreme Court’s decision striking down the Defense of Marriage Act, the extent to which many federal benefits — taxes, Social Security, veterans benefits and family leave — will flow to married same-sex couples remains in question.
The Obama administration has extended certain benefits to married same-sex couples regardless of whether they live in the United States, but other benefits are still in limbo because of law, regulation or policy that determines whether a couple should be considered legally married.
Here’s a breakdown of these benefit categories and where they stand in terms of what’s obstructing their flow to married same-sex couples and what LGBT advocates see as the way forward:
1. SOCIAL SECURITY
Last week, the Social Security Administration announced for the first time it was starting to process retirement claims for married same-sex couples who apply for them in aftermath of the court decision on DOMA. But the extension of these benefits is limited.
On Friday, the agency published guidance indicating these benefits will flow to same-sex married couples living in states that recognize their unions, but couples that apply for these benefits in non-marriage equality states for the time being will have their requests placed on hold.
“Bill (the claimant) and Bob (the NH) marry in MA after MA recognizes same-sex marriage, but are domiciled Texas (TX),” the guidance says. “Bill files for husband’s benefits on Bob’s record. They meet all other factors of entitlement. Hold the claim.”
William “BJ” Jarrett, a Social Security spokesperson, confirmed on Monday the agency is processing some Social Security retirement spouse claims when the individual was married in a state that permits same-sex marriage and lives in a marriage-equality state at the time of application — or while the claim is pending a final determination. Still, he acknowledged other retirement claims are on hold.
“For all other claims, including Social Security survivors benefits, we continue to work with the Department of Justice on the development and implementation of policy and processing instructions,” Jarrett said. “We do, however, encourage individuals who believe they may be eligible for Social Security benefits to apply now to protect against the loss of any potential benefits.”
The reasoning for placing these claims on holds is statutory. Social Security law looks to the state of residence when a couple applies for benefits to determine if they’re married instead of looking to the place of celebration.
Even so, LGBT advocates say it’s possible for the Obama administration to interpret the Supreme Court ruling against DOMA in a broad way that allows them to offer Social Security benefits to a greater number of couples.
Michael Cole-Schwartz, a Human Rights Campaign spokesperson, indicated that no final decision has been with the assessment of these benefits as he encouraged the Obama administration to expand the benefits to additional couples.
“We are glad to see some couples getting benefits and that the door is still open for those couples living in non-marriage equality states,” Cole-Schwartz said. “We urge them to take the broadest interpretation to ensure the maximum numbers of same sex couples have access to benefits.”
Susan Sommer, a senior counsel at Lambda Legal, said her organization also believes gay couples in civil unions or domestic partnerships should also be eligible for Social Security benefits.
“We think that the laws reads for sure to includes those people who live in those states that have a civil union or domestic partnership, but waiting to hear from the Obama administration for confirmation on that point,” Sommer said.
But a statutory change may be necessary. In that event, Rep. Linda Sanchez (D-Calif.) has introduced Social Security Equality Act, which would enable gay couples to receive Social Security no matter where they live — even if their union isn’t a marriage, but a civil union or a domestic partnership.
“It is time for our government to stop telling gay and lesbian couples that they are second class citizens,” Sanchez said last week in a statement. “Same-sex couples pay into Social Security over the course of their working lives just like other Americans. They should receive the full benefits they have earned.”
2. TAXES
Another question is whether legally married same-sex couples throughout the country will be eligible for tax benefits — such as the exemption from the estate tax, the ability to jointly file and exemption from taxes on employer-provided spousal health benefits — in the wake of the DOMA decision. These couples are currently not receiving benefits if they live in states that haven’t legalized marriage equality.
That means if DOMA-lawsuit plaintiff Edith Windsor had moved to a non-marriage equality state like Alabama with Thea Spyer after marrying in Canada, she wouldn’t have been eligible for exemption from the estate tax as a result of her own lawsuit.
But what’s different about these benefits is that neither law nor regulation keeps these benefits from flowing to married same-sex couples that live in marriage equality states. It’s simply the policy of the Internal Revenue Service to look to the state of residence as opposed to the state of celebration in determining whether a couple is married.
Lambda’s Sommer pointed out that only policy is keeping the IRS from allowing these couples in non-marriage equality states to receive tax benefits entitled to other married couples.
“We are aware of no statute or even a regulation that prescribes a choice of law rule for determining the marital status for tax purposes,” Sommer said. “There’s no legal impediment to having the administration follow a place of celebration standard. It could so in addition to, say a place of domicile standard, which has been articulated in some tax court rulings, but still, in some circumstances, as a place of celebration rule.”
An IRS spokesperson referred to the statement currently on the agency’s website posted at the time of the Supreme Court in response to inquiry on whether IRS would implement tax benefits for married same-sex couples on the nationwide basis, regardless of their states of residence.
“We are reviewing the important June 26 Supreme Court decision on the Defense of Marriage Act,” the statement says. “We will be working with the Department of Treasury and Department of Justice, and we will move swiftly to provide revised guidance in the near future.”
3. VETERANS BENEFITS
Defense Secretary Chuck Hagel announced on the day the U.S. Supreme Court struck down DOMA that the Pentagon would comply the law to implement benefits for service members with same-sex spouses. But the question of whether veterans will be included as part of the package remains to be seen.
In U.S. Code, the Pentagon was previously unable to provide gay troops spousals benefits under Titles 10 and 32, which govern rights for service members, because of the Defense of Marriage Act. Now that the Supreme Court has struck down Section 3 of DOMA, those benefits should begin to flow.
However, the benefits under Title 38, which governs benefits for veterans, define spouse independently of DOMA in opposite-sex terms. Some of the benefits allocated under this law are disability benefits, survivor benefits and joint burial at a veteran’s cemetery. It’s unclear whether these benefits will begin to flow along with these other benefits because of the wording within the law.
Multiple media outlets are reporting that the Pentagon intends to have the benefits issue wrapped up by Aug. 31 along with the extension of benefits that were available under DOMA, such as military IDs, that were announced in February. Additionally, the U.S. Justice Department is required to file in McLaughlin v. Hagel, an ongoing DOMA lawsuit, to provide a status report by Sept. 9 on benefits afforded to gay troops addressing the Title 38 issue. An informed source told the Washington Blade the issue may be resolved as soon as this week.
Alex Nicholson, who’s gay and legislative director for Iraq & Afghanistan Veterans of America, said his organization has spoken about the issue with the administration and believes it has a “justifiable mandate” to afford these benefits to the legal spouses gay veterans.
“It’s not surprising that they’re taking their time to figure this out and do it right, but I think the mandate from the Supreme Court was clear enough that they could definitely move a little faster,” Nicholson said.
Lambda’s Sommer said the issue for gay veterans isn’t so much Title 38 because Title 1 of the U.S. Code should allow for a gender-neutral construction of this law. Still, she said other portions of the law related to veterans benefits could impact gay veterans seeking claims.
“In the veterans benefits area, there is also a statute kind of like what’s seen in the Social Security context that looks to the place of domicile at the time of celebration or when the right to the benefit has accrued,” Sommer said. “We’ll have to await guidance for how the administration will treat veterans who resided at the time of their marriage, and continue to live, in states that don’t respect their marriages.”
Lt. Cmdr. Nathan Christensen, a Pentagon spokesperson, said the Defense Department is working on the issue, but unable to provide additional information.
“The Department of Defense is working alongside the Department of Justice to implement the Court’s decision as quickly as possible,” Christensen said. “At this time no decisions have been made.”
In a statement provided to the Blade, the Department of Veterans Affairs similarly said the department was working to implement the benefits without providing anything conclusive on the extent to which they would flow.
“Our commitment to our Veterans and their families will continue to be our focus as we work to comply with recent Supreme Court decisions,” the statement says. “We are working closely with the Department of Justice to review relevant statutes and policies to implement any necessary changes to Federal benefits and obligations swiftly and smoothly in order to deliver the best services to all our nation’s Veterans.”
Here a change in the law may be required as well. The Charlie Morgan Act, introduced by Sen. Jeanne Shaheen (D-N.H.), would enable spousal benefits to flow to gay veterans. It was reported out of the Senate Committee on Veterans’ Affairs just prior to August recess.
4. FAMILY AND MEDICAL LEAVE
Yet another issue that related to family leave still persists a few days after the Labor Department issued guidance stating the Family & Medical Leave Act will apply to married same-sex couples in the wake of the Supreme Court decision against DOMA: Will the change apply to married same-sex couples in non-marriage equality states?
On Friday, Labor Secretary Thomas Perez issued guidance to department staff notifying them the Wage & Hour Division made the change as the result of the work with the Justice Department and calling the Supreme Court ruling against DOMA “a historic step toward equality for all American families.”
“As part of this process, the Department of Labor updated several guidance documents today to remove references to DOMA and to affirm the availability of spousal leave based on same-sex marriages under the Family and Medical Leave Act (FMLA),” Perez said. “This is one of many steps the Department will be taking over the coming months to implement the Supreme Court’s decision.”
The Family & Medical Leave Act entitles employees to take unpaid, job-protected leave for family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to 12 work weeks of leave in a year-long period for the birth of a child or to care for spouse and up to 26 work weeks of leave to care for a service member with a serious injury.
But under current policy, this post-DOMA application of the Family & Medical Leave Act won’t apply to married same-sex couples if they place of residence doesn’t recognize same-sex marriage. A Labor Department official said the Wage & Hour Division’s Family & Medical Leave Act regulations define “spouse” for purposes of marriage as recognized under the state law where an employee resides. All that would be required for to change this policy is a change in regulation.
Tico Almeida, president of Freedom to Work, called on the Labor Department to update the regulations so same-sex marriages are recognized by the state of celebration for family and medical leave purposes.
“The couple that lives in Alabama, flies to New York City for the weekend to get married and returns to Alabama deserves to have the same FMLA rights as the gay and lesbian couples that live in New York City,” Almeida said. “We want a 50-state solution, and that means recognizing same-sex marriages by the state of celebration, even though current FMLA regulations recognize marriage by the state of residency.”
India
Menaka Guruswamy celebrated as India’s first openly LGBTQ MP
Constitutional lawyer elected to Rajya Sabha on March 9
India’s LGBTQ community has found renewed hope in the election of Menaka Guruswamy, a lawyer who has argued before the Supreme Court, as the country’s first openly LGBTQ MP.
Guruswamy was declared elected unopposed to the Rajya Sabha, the upper house of Parliament, on March 9, representing West Bengal. The All India Trinamool Congress, the regional party that governs the state, nominated her.
Guruswamy is a constitutional lawyer who studied at Oxford University, Harvard Law School, and the National Law School of India University. She has argued several significant cases before the Supreme Court and is widely known for her work on constitutional law, civil liberties, and LGBTQ rights.
Guruswamy was part of the legal team that successfully challenged Section 377 of the Indian Penal Code, a colonial-era law that criminalized consensual same-sex sexual relations, which the Supreme Court struck down in 2018. She has also written and spoken extensively on issues of democracy, rights and institutional accountability.
Ankit Bhupatani, a global diversity, equity and inclusion leader and LGBTQ activist, welcomed Guruswamy’s election.
“This is significant not because Parliament needed a queer person, but because a queer person needed Parliament,” Bhupatani told the Washington Blade.
India has seen LGBTQ representation in elected office at the state and local levels, though it has remained limited.
In 1998, Shabnam Mausi was elected to the Madhya Pradesh Legislative Assembly from the Sohagpur constituency, becoming one of the first openly transgender people to hold public office in India. Mausi’s election marked a rare moment of visibility for trans people in the country’s political system, where representation has historically been sparse. Since then, a small number of openly trans candidates have contested and, in some cases, won local and state elections, but no openly LGBTQ person had been elected to Parliament before Guruswamy.
Guruswamy and her partner, Arundhati Katju, who is also a lawyer, were part of the legal team that played a central role in the Section 377 decision.
Representing one of the plaintiffs, the two lawyers helped frame the case around constitutional guarantees of equality, dignity, and privacy. The Navtej Singh Johar v. Union of India ruling marked a watershed moment for LGBTQ rights in India.
“For too long, we have fought our battles only in courtrooms and on streets. Now, there is a seat at the table where laws are written,” said Bhupatani. “Whether that seat produces change depends entirely on how it is used. Representation without substance is decoration. But as a beginning, yes. This matters.”
Guruswamy later represented the plaintiffs in the Supreme Court’s 2023 marriage equality case, Supriyo v. Union of India, which a 5-judge panel heard in the spring of 2023.
Along with other lawyers representing same-sex couples, she advanced arguments rooted in constitutional guarantees of equality, dignity, and personal liberty. The Supreme Court in a 3-2 decision on Oct. 17, 2023, declined to recognize same-sex marriage — holding that such a change falls within Parliament’s domain — but did acknowledge LGBTQ people face discrimination. The Blade previously reported the ruling underscored the court’s view that it could interpret the law, but could not create a new legal framework for marriage rights.
Bhupatani said Guruswamy’s election should not be seen as an immediate shift toward legislative action on LGBTQ rights, cautioning that such expectations may not align with political realities. He said her presence in Parliament could help sustain the issue in a way it has not been before, even as broader legal change is likely to take time.
“What she can do is keep the question alive inside Parliament in a way that it hasn’t been before,” Bhupatani said. “Legislative change in India on social questions usually takes longer than advocates want and shorter than skeptics predict. The 377 decriminalization seemed impossible until it wasn’t. Partnership rights will follow the same pattern eventually.”
Bhupatani added that while Guruswamy’s election may influence the pace of change, it does not, on its own, constitute a broader political movement.
“One person in Parliament, however extraordinary, is not a movement. She is an opening,” he said. “The 2023 ruling created a responsibility. Guruswamy’s election creates an opportunity to fulfill it from inside. Whether opportunity becomes outcome is entirely a question of human will.”
Guruswamy has served as a visiting faculty member at leading American institutions that include Yale Law School, Columbia Law School, and New York University School of Law. She has also worked with international organizations, advising the U.N. Development Fund for Women in New York and the U.N. Children’s Fund in both New York and South Sudan.
According to her professional profile, Guruswamy has been involved in a range of significant cases before the Indian Supreme Court that include matters related to bureaucratic reform and accountability.
One case is connected to the AgustaWestland helicopter deal, an investigation into alleged bribery in a multimillion-dollar defense procurement contract; litigation arising from the Salwa Judum case, in which the court examined the state-backed use of civilian militias in counterinsurgency operations in central India; and cases involving the implementation of the Right to Education Act, a law guaranteeing free and compulsory education for children between the ages of six and 14.
More recently, Guruswamy represented the All India Trinamool Congress in legal proceedings challenging searches conducted by India’s Enforcement Directorate, a federal agency responsible for investigating financial crimes, including money laundering and violations of foreign exchange laws. The searches were carried out at the offices of the Indian Political Action Committee, or I-PAC, a political consulting firm that provides data-driven campaign strategy and election management services to political parties. The case raised questions about the scope of investigative powers and the use of federal agencies in politically sensitive matters.
Guruswamy’s engagement with LGBTQ rights has extended beyond courtroom advocacy into public constitutional discourse.
On July 11, 2018, during hearings in the Section 377 case, she argued the criminalization law could not be justified on the basis of “social morality,” describing it as subjective and incompatible with constitutional guarantees, and framing the case as one fundamentally about “our humanity.” The Thomas Jefferson Foundation Medal in Law at the University of Virginia in February 2023 recognized Guruswamy and Katju for their work on LGBTQ rights.
Guruswamy has not responded to the Blade’s multiple requests for comment about her election.
District of Columbia
Gay priest credited with boosting church support for LGBTQ Catholics
Fr. Tom Oddo’s biographer speaks at Dignity Washington event
The author of a biography of a U.S. Catholic priest said to have advocated for support by the Catholic Church of gay Catholics in the early 1970s has called Father Thomas ‘Tom’ Oddo a little known but important figure in the LGBTQ rights movement.
Tyler Bieber, author of the recently published book “Against The Current: Father Tom Oddo And the New American Catholic,” told of Oddo’s life and work on behalf of LGBTQ rights at a March 22 talk before the local LGBTQ Catholic group Dignity Washington.
Among Oddo’s important accomplishments, Bieber said, was his role as a co-founder of the national LGBTQ Catholic group Dignity U.S.A. in 1973 at the age of 29.
But as reported in the prologue of his book, Bieber presented details of the sad news that Oddo died in a fatal car crash in 1989 at the age of 45 in Portland, Ore., where he was serving as the highly acclaimed president of the University of Portland, a Catholic institution.
“He was a major figure in the gay rights movement in the 1970s, an unsung hero of that movement,” Bieber told Dignity Washington members, who assembled for his talk in a meeting room at St. Margaret Episcopal Church near Dupont Circle, where they attend their weekly Catholic mass on Sundays.
“And Dignity U.S.A. saw intense growth in membership and visibility” during its early years under Oddo’s leadership, Bieber said. “The story of Father Tom and his contemporaries is a story largely untold in the history of the gay rights movement, but one worth knowing and considering,” he said.
As stated in his book, Bieber told the Dignity Washington gathering Oddo was born and raised in a Catholic family on Long Island, N.Y., and attended a Catholic high school in Flushing Queens. It was at that time when he developed an interest in becoming a priest, according to Bieber.
After studying at the University of Notre Dame and completing his religious studies he was ordained as a priest in 1970 and began his work as a priest in the Boston area, Bieber said. It was around that time, Bieber told the Dignity Washington audience, that gay Catholics approached Oddo to seek advice on how they should interact with the Catholic Church. It was also around that time that Oddo became involved in a group supportive of then gay Catholics that later became a Dignity chapter in Boston.
In a development considered unusual for a Catholic priest, Bieber said Oddo in 1973 testified in support of gay rights bill before a committee of the Massachusetts Legislature and collaborated with then Massachusetts gay and lesbian rights advocate Elaine Noble.
In 1982, at the age of 39, Oddo was selected as president of the University of Portland following several years as a college teacher in the Boston area, Bieber’s book states. It says he was seen as a “vibrant and capable administrator who delivered real results to his campus,” adding, “His magnetism was obvious. One student described him as ‘John Kennedyesque’ to the university’s student newspaper.”
Bieber said that although Oddo was less active with Dignity U.S.A. during his tenure as UP president, he continued his support for gay Catholics and what is now referred to as LGBTQ rights.
“For those that knew him prior to his term at UP, though, he represented something greater than an accomplished university administrator and educator,” Bieber’s book states. “He was a new kind of priest, a gay man living and ministering in a world set loose from tradition by the Second Vatican Council,” the book says.
It was referring to the Vatican gathering of worldwide Catholic leaders from 1962 to 1965 concluding under Pope Paul VI that church observers say modernized church practices to allow far greater participation by the laity and opened the way for sympathetic consideration of gay Catholics.
District of Columbia
HRC to host National Rainbow Seder
Bet Mishpachah among annual event’s organizers
The 18th National Rainbow Seder will take place at the Human Rights Campaign on Sunday.
The sold out event is the country’s largest Passover Seder for the Jewish LGBTQ community.
Organizations behind the event include Bet Mishpachah, a local D.C. LGBTQ synagogue that Rabbi Jake Singer-Beilin leads, and GLOE, an Edlavitch DC Jewish Community Center program that sponsors events for the queer Jewish community. The theme for this year’s Seder is “Liberation For All Who Journey: Remembering, Resisting, Rebuilding.” Rabbis Atara Cohen, Koach Frazier, and Avigayil Halpern will lead it.
The Seder will honor the late GLOE co-chair Michael Singer. Singer also served on the Edlavitch DC Jewish Community Center’s board.
“This Seder is both a celebration of how far we have come and a call to continue building a more just and inclusive world.” Bet Mishpachah Executive Director Joshua Maxey told the Washington Blade.
Menaka Guruswamy celebrated as India’s first openly LGBTQ MP
Trans-led HIV clinic in Portsmouth struggles amid funding cuts
D.C. goes gaga for Gaga
Gay priest credited with boosting church support for LGBTQ Catholics
HRC to host National Rainbow Seder
‘How We Survived’ panel set for March 25
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