In response to a question from the Washington Blade, Earnest said he remains confident in the arguments presented before the court when asked about the potential extension of Social Security and veterans spousal benefits to same-sex couples in states without marriage equality.
“At this point, we continue to have a lot of confidence in the legal arguments presented by the solicitor general with regard to this matter, and I’m not aware of any contingency planning that’s ongoing at this point,” Earnest said.
Although the Obama administration has extended many federal benefits of marriage to same-sex couples following the 2013 decision against the Defense of Marriage Act, the Justice Department determined it couldn’t afford certain Social Security and veteran spousal benefits to same-sex couples in non-marriage equality states. U.S. code for these benefits looks to the state of residence, not the state of celebration, to determine whether a couple is married.
The Supreme Court this month is expected to deliver a decision on whether same-sex couples have a constitutional right to marry across the country. Although optimism persists the court will issue a favorable ruling, a decision from the court upholding bans on same-sex marriage means under current policy those benefits still won’t flow to couple in non-marriage equality states.
Legislation is pending before Congress that would update U.S. code to ensure these benefits flow to couples regardless of where they live. The Respect for Marriage Act would ensure access of marriage benefits across the board, while the more specifically tailored Charlie Morgan Act would address the veterans benefits issue and the Social Security & Marriage Equality Act would handle Social Security benefits.
But LGBT advocates have already on called on Obama to address this matter administratively, saying continuing to withhold these benefits violates the spirit of the Supreme Court decision against DOMA.
Ian Thompson, legislative director for the American Civil Liberties Union, said a two-pronged approach will continue if the Supreme Court upholds bans on same-sex marriage.
“In that event, we will be urging – once again – both SSA and the VA to look at whether they can interpret their statutory authority to respect the marriages of same-sex couples,” Thompson said. “In addition, we will be urging Congress to pass the Respect for Marriage Act to ensure that the marriages of same-sex couples are recognized for all federal purposes.”
The White House has said consistently it has no plans to change policy to ensure the flow of Social Security and veterans benefits to same-sex couples. Lawsuits filed by Lamba Legal and Gay & Lesbian Advocates & Defenders seeks to compel the Obama administration to afford these spousal benefits to same-sex couples, but they remain pending in the federal judiciary.
Ashley Broadway-Mack, president of the American Military Partner Association, said she’s expecting action on behalf of veterans if the Supreme Court upholds prohibitions on same-sex marriage.
“Considering the very strong constitutional arguments, it’s certainly not surprising that the administration seems to be expecting a nationwide marriage equality victory from the court,” Broadway-Mack said. “If equality doesn’t win however, we’ll need both Congress and the White House to put politics aside and do everything in their power to ensure our nation’s veterans receive the benefits they’ve earned serving our great nation. No veteran should be treated differently by the federal government because the state they live in doesn’t respect their marriage.”
In its 2015 Blueprint for Positive Change, the Human Rights Campaign called on the Obama administration to take certain action for inequities in Social Security and veterans benefits for same-sex marriages.
Stephen Peters, spokesperson for the Human Rights Campaign, said his organization will continue efforts for parity in benefits if the Supreme Court determines bans on same-sex marriage are constitutional.
“If the Court does not rule in favor of nationwide marriage equality, in regards to veterans and social security benefits, HRC would remain committed to working with our allies in Congress to pass legislation to fix the discriminatory statues governing these federal benefits,” Peters said. “Regardless of which way the court rules, HRC will also continue to urge the Obama Administration to continue its unprecedented legacy of progress for the LGBT community by doing everything within its power to advance fairness and equality for LGBT people – including actions that we have outlined in our 2015 Blueprint for Positive Change.”