After making new benefits available to married same-sex couples throughout the course of the year following the U.S. Supreme Court decision against the Defense of Marriage Act, the Obama administration made clear on Friday that a change in law is needed to recognize these unions for the purposes of certain Social Security and veterans spousal benefits.
A White House official told the Washington Blade that the Justice Department will announce on Friday it has concluded its year-long review of the historic decision.
Further, the administration will announce federal laws that look to the state of residence instead of the state of celebration to determine whether a couple is married “preclude the federal government from extending benefits to legally married couples regardless of where they currently live,” the official said.
That means, under current law, certain Social Security and veterans benefits won’t be available to married same-sex couples if they wed in one state, but move to one of the 30 states without marriage equality and apply for the benefits there.
The administration’s determination that it must withhold these benefits despite the Supreme Court’s decision against DOMA stands in contrast to the numerous other benefits it has afforded to married same-sex couples regardless of whether or not they live in states that recognize their marriage.
These benefits include recognition of same-sex married couples for federal tax purposes; the ability of bi-national same-sex couples to apply for marriage-based green cards; spousal employee benefits for federal workers and U.S. service members; and requiring insurers to recognize same-sex marriages if they offer spousal coverage.
One more change is set to be announced on Friday. The Department of Labor is set to issue a notice of proposed rulemaking on the Family & Medical Leave Act, clarifying an employee is eligible for leave to care for a same-sex spouse — even if the couple lives in a non-marriage equality state.
The rule builds off an earlier announcement in August in which the Labor Department indicated married same-sex couples were eligible under the FMLA, but that development only applied to couples living in states with marriage equality.
And even though the administration is set to announce it won’t be able to enact similar policy for Social Security and veterans benefits, there will be some limited workaround.
For veterans benefits, one administration official said veterans in same-sex marriages who live in a non-marriage equality state will be able to 1) transfer GI-Bill education benefits to dependents; 2) access group life insurance and family insurance group life insurance programs; 3) be eligible for spousal survivor education benefits.
Earlier this month, the Department of Veterans Affairs issued a new rule that will provide burial benefits to same-sex couples in domestic partnerships or civil unions. It may have been the first time the federal government has recognized these unions for the purposes of federal benefits.
For Social Security, the administration official said if a married same-sex couple applies for benefits in a marriage-equality state, but moves to another state that doesn’t recognize the marriage, the agency won’t withhold benefits based on the place of residence standard during or after the application process.
Further, the official said same-sex couples living in states with domestic partnerships or civil unions, but not marriage equality, would be eligible for Social Security benefits. For the time being, that would impact couples in Colorado, Wisconsin and Nevada.
But for anything further, Congress would need to pass legislation. The administration is calling on Congress to pass legislation along these lines to address the issue, the White House official said.
The Respect for Marriage Act, sponsored by Rep. Jerrold Nadler (D-N.Y.) in the House and Sen. Dianne Feinstein (D-Calif.) in the Senate, has a “certainty” principle that would ensure the federal benefits of marriage would flow to married same-sex couples regardless of where they live.
The Social Security & Marriage Equality Act, introduced by Sen. Patty Murray (D-Wash.), would affects issues related to Social Security benefits, while an amendment introduced by Sen. Jeanne Shaheen (D-N.H.) and Mark Udall (D-Colo.) along the lines of the Charlie Morgan Act would address veterans benefits.
One other solution to the problem could be another ruling from the U.S. Supreme Court instituting marriage equality throughout the country. As litigation continues to percolate through the judiciary, a final ruling from the Supreme Court on the marriage issue is expected by the middle of next year.
The administration is announcing these developments just after a meeting at the White House on Thursday in which LGBT advocates were invited to discuss the planned executive order barring anti-LGBT discrimination among federal contractors and the implementation of the Supreme Court decision against DOMA.
[UPDATE: The Justice Department formally announced in the form of a memo from U.S. Attorney General Eric Holder to President Obama it has concluded its review of the DOMA ruling. Download the memo here.
“The implementation of the Windsor decision across the entire federal government is an accomplishment that reflects countless hours of hard work, cooperation, and coordination across agencies," Holder said in a statement. "As additional issues arise, we will continue to work together to uphold this Administration’s fundamental commitment to equal treatment for all Americans, and to extend this fundamental equality to all Americans.”]