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Fed’l benefits issues linger post-DOMA for gay couples

Questions remain on Social Security, taxes, veterans benefits and family leave

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Jeff Zarillo, Paul Katami, Sandy Stier, Kris Perry, David Boies, Chad Griffin, gay marriage, same-sex marriage, marriage equality, Proposition 8, Defense of Marriage Act, DOMA, Prop 8, California, Supreme Court, gay news, Washington Blade
Jeff Zarillo, Paul Katami, Sandy Stier, Kris Perry, David Boies, Chad Griffin, gay marriage, same-sex marriage, marriage equality, Proposition 8, Defense of Marriage Act, DOMA, Prop 8, California, Supreme Court, gay news, Washington Blade

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.”

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Africa

African leaders once again trade African family values for American family values

Anti-LGBTQ conference backed by US-based groups took place this month in Ghana

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(Photo by NASA)

At the moment, some religious and political leaders in Africa are pushing for a charter on family values, lobbying lawmakers, African state institutions, and the African Union to formally adopt it. In the past number of years, they have been holding conferences across Africa with the support and funding of Western religious donors who, in their own countries, are definitely perceived as racist, hateful, and against women. Most recently, they convened the African Regional Interparliamentary Conference on Family Values and Sovereignty in Accra, Ghana. All this raises critical questions about foreign influence and agendas. At this critical time, when Africa faces so many problems, why do people insist on pushing an agenda that is neither ours nor relevant to our prosperity?

The African leaders who claim to protect African family values and sovereignty, unsurprisingly, exhibit traits similar to those of the historical enslavers and similar collaborators. Contrary to what they claim as “pushing back against foreign influence on the African family” and the infamous sovereignty claims, it has been proven that these leaders are directly linked and backed by the conservative “foreign” groups, including the U.S.-based hate organization, Family Watch International, which is closely linked to the anti-rights authors of Trump’s Project 2025, Heritage Foundation; and the Netherlands-based Christian nationalist organization, Christian Council International, another group closely linked to organizations supporting the Trump administration and its continued hate-based policies and atrocities. One might even argue that they serve these groups, their mandates, and their Western agenda, instead of what they want African people to believe: that they are doing this for the good and prosperity of Africa and its sovereignty. The truth, however, is that their so-called African values, culture, traditions, etcetera, could not be further removed from true African cultural values but instead mimic those outlined in America’s Project 2025. Meanwhile, the very same people who are pushing for these family values under Project 2025 are the very same people pushing for the exploitation of Africa’s natural resources, without any care for the impact their actions have on African people and their livelihoods. Adopting their policies verbatim in Africa and claiming them as our own could easily be seen as counterintuitive and self-betrayal.

Africa’s rich history of family, diversity, womanhood, and matriarchy is too beautiful to erase. Africans, especially women and girls, deserve to know about the likes of Queen Modjadji of the Balobedu people, a fierce leader who is traditionally believed to have rainmaking abilities and notably a distinctively matriarchal dynasty where the reign is passed down from woman to woman, from mother to daughter; or Queen Nzinga of modern-day Angola, who led an army that resisted and fought against the Portuguese colonizers. Queer folks and African spiritualists alike deserve to know how women and gender diverse persons held some of the highest spiritual positions in society, like Mbuya Nehanda of Zimbabwe, who was a deeply respected spirit medium and a leader of the resistance against early colonial rule in Zimbabwe, and the transgender priests, the respected agule and okule, female-to-male and male-to-female shamans of the Lugbara, now the Democratic Republic of Congo and Uganda, who led spiritual ceremonies. Even though the mudoko dako of the Langi people in Uganda were known to have been assigned male at birth, they were recognized as a distinct gender that was allowed to marry men. Africans must also know about woman-to-woman marriages that existed in pre-colonial Africa, which, according to research and oral histories, were recognised and served various purposes, from economic and social functions to lineage preservation. Similar practices include those from the Bapedi and Balobedu cultures, ngwetsi ya lapa, which still exists today, where a woman is married into a family or household to raise an heir for the family or to continue the family name, not necessarily the lineage. 

As well-intentioned as it may appear, evidence suggests that the African leaders’ draft charter, because of its existing ties to Western ultraconservative partnerships, is neither original nor in good faith. The pace at which they have been moving and their true subsequent agenda should indisputably be questioned and criticised. Regardless of the inclusion of desirable language and terms such as minerals sovereignty and the Ubuntu philosophy, beneath the surface, the charter does not truly reflect these concepts. The charter, instead, does a disservice to African people by misrepresenting Africa’s diversity and disregarding its history as it relates to the diversity of families. The West has no business drafting or helping draft African legislation, especially if the whole of Africa is at risk of their negative impact. One would think the common goal would be to address bread-and-butter issues, such as poverty, unemployment, diseases, and health, to name but a few, instead of pushing the distractive agenda of those responsible for robbing Africa in the first place. No single group is the sole custodian of African knowledge. Africa belongs to all of us, with our diverse families and values, which cannot be defined through a single, narrow lens and are instead very individual issues that will differ from family to family. 

Daniel Digashu is a consultant at the Southern Africa Litigation Center (SALC). SALC promotes and advances human rights and the rule of law in Southern Africa, primarily through strategic litigation and capacity-strengthening support to lawyers and grassroots organizations.

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Delaware

Del. AG Jennings seeks third term touting LGBTQ support, decline in crime

‘To discriminate against trans children is child abuse’

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Delaware Attorney General Kathy Jennings (Photo courtesy Jennings campaign)

(Editor’s note: This is the second of a two-part report on the race for Delaware attorney general. For last week’s interview with Democratic candidate Dwayne Bensing, visit washingtonblade.com.)

Delaware Attorney General Kathy Jennings spoke to the Washington Blade to discuss why she should be elected to a third term. 

Born and raised in Wilmington, Del., Jennings’ career in criminal prosecution spans decades. Prior to being sworn in as Delaware’s attorney general in 2019, Jennings worked as a prosecutor under the Delaware Department of Justice for years before being named Delaware State Prosecutor.

As a prosecutor, Jennings worked to convict the serial killer responsible for the murders of five women in New Castle County. This case was the first that DNA analysis was used as evidence in a Delaware court.  

“My focus for years has been reducing violent crime in our state, in particular gun violence. Over the course of my tenure, we have seen a dramatic drop in violent crime,” said Jennings. 

According to the Criminal Justice Council, under Jennings’s leadership in 2024, Delaware saw its lowest violent crime rate on record

“We are seeing violent crime going down to historic lows in the state of Delaware, and in particular in our largest city, the city of Wilmington,” said Jennings. 

At the end of 2023, homicides had decreased in Wilmington by more than 50% and shootings in Dover had declined by 23%. Additionally, the state’s prison population fell by nearly 25% since 2019 and the recidivism rates declined by 60%. 

Jennings explained “This job takes commitment, dedication, and lots of experience in the criminal justice system, because it’s our job to make sure that the criminal justice system is fair and equal to everyone.”

Within her efforts to reduce violent crime, Jennings said that she has especially focused on fighting gun violence. 

“I have made a priority in my administration to go after the gun lobby and to make sure that the state of Delaware has gun safety laws that are effective in reducing violent crime and that also are effective in protecting people, most especially our children,” she said.

“The No. 1 cause of death for children in our country are guns, and as long as that’s the case, my work is not done,” she added. 

Jennings said that she wants to protect children in particular from gun violence and that this fight remains a work in progress.

“We are beating the gun lobby in the legislature and in the courts, and we are seeing dramatic results in terms of reductions in gun violence that takes a lot of work that is ongoing,” said Jennings. 

Fighting the Trump administration remains an integral part of Jennings’s work as attorney general, as she has sued the Trump administration more than 40 times

“The Trump administration’s lawsuits could have cost Delaware almost a billion dollars in federal funds if we had succumbed to their extortionist threats, and we didn’t do that.” said Jennings. 

“We sued opioid manufacturers and distributors, getting $250 million to this state to fight addiction as a result of that. We will continue to do all the work that Delawareans expect us to do,” said Jennings. 

“We’re successful, and we’re going to continue to be successful,” Jennings said regarding her legal battles with the Trump administration.

In terms of support for the LGBTQ+ community, Jennings has previously sued HHS for discriminating against transgender Delawareans

Last summer, Jennings sent a letter to Nemours Children’s Hospital imploring them to reconsider its decision to stop providing gender-affirming care services to new transgender youth patients. Her primary opponent, Dwayne Bensing, criticized this letter for not being strong enough in protecting the trans community. 

The Blade asked Jennings about how she plans to continue to be an ally to the LGBTQ+ in a third term. She responded by saying: “We need to keep fighting to ensure that there are constitutional amendments that further protect children and protect marriage equality in our state, and we’re fighting to make sure those amendments are on the way.”

“To discriminate against trans children, in my mind, is child abuse. That’s what we’ve been fighting in the courts,” said Jennings. 

Jennings emphasized the importance of protecting LGBTQ+ youth by noting, “Our children deserve an environment where they are treated with compassion and equality.”

“It’s going to take a very strong attorney general who knows what she is doing to continue this fight,” said Jennings. 

The Blade also asked Jennings about her oversight of the restructuring of OpenAI. Originally founded as a nonprofit corporation in Delaware in 2015, OpenAI announced its goal to transition to a for profit corporation in May of 2025

“It is the duty of the attorney general to ensure that a corporation is fulfilling its charitable purpose,” said Jennings. “OpenAI’s charitable purpose is to use it to benefit all of humanity. That’s a big mission.”

Jennings worked closely with California Attorney General Rob Bonta to oversee OpenAI’s transition from nonprofit to for profit. 

“We got deeply involved in Open AI’s restructuring process to make sure the charitable corporation would be capitalized well to fulfill their mission of benefiting humanity and that they would prioritize safety. Those two goals were achieved.”

The restructuring process was approved by Jennings and Bonta in October of 2025. They appointed three independent directors to oversee OpenAI’s actions. “These three are independent directors who report to us several times a year,” said Jennings.

“We achieved a far superior result, because we are in the boardroom, we’re able to see what [OpenAI] is doing.”

“We have the full ability to go after OpenAI if they don’t fulfill our urges and we get the ability to oversee them on an ongoing regular basis,” said Jennings.

Jennings reiterated her desire to continue her work as attorney general: “These fights have to continue uninterrupted by people who know what they’re doing.”

“It is an honor and a privilege to have been voted in by Delawareans these last two terms, and I’m asking them to put me in again. I’m fighting hard,” said Jennings.  

The primary election for Delaware attorney general is Sept. 15. 

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Nepal

Nepalese Supreme Court issues landmark marriage equality ruling

Same-sex couples since 2023 allowed to marry under ‘temporary registration system’

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The Nepalese Supreme Court (Photo by TK Kurikawa/Bigstock)

The Nepalese Supreme Court on June 18 ruled the country must extend full marriage rights to same-sex couples.

The Supreme Court in 2023 ordered the country’s government to allow same-sex couples to temporarily register their marriages, but this recognition did not guarantee full marriage rights to gays and lesbians.

“Since the Supreme Court’s landmark 2023 decision, dozens of same-sex couples have legally married in Nepal under a temporary registration system,” said the Blue Diamond Society, a Nepalese LGBTQ advocacy group, in a June 19 press release. “However, the lack of national legislation has created uncertainty and fear for couples who want to register their marriage.”

“Many couples have been denied marriage licenses by local clerks who claim there is no national law instructing them to register marriages of same-sex couples,” further noted the Blue Diamond Society. “Other couples have been forced to file legal cases and endure costly legal battles simply to register their marriage. And even among couples who have registered their marriages, there is concern that their marriages may not be respected when it comes to adoption, inheritance, and other important protections they need to care for their families.”

Thailand and Taiwan are among the countries that have extended full marriage rights to same-sex couples.

The Japanese Supreme Court in March said it will consider six marriage equality lawsuits. The South Korean marriage equality movement in recent years has gained momentum with several court rulings that recognized same-sex relationships.

The Blue Diamond Society in its press release notes the June 18 decision is the fourth time the Supreme Court has ruled in favor of marriage equality.

“Today is a day of celebration for LGBTQIA+ people and families across Nepal,” said Blue Diamond Society Executive Director Manisha Dhakal. “The Supreme Court has once again affirmed that same-sex couples deserve the same dignity, respect, and legal protections as any other couple.”

“We are grateful for the court’s continued leadership,” added Dhakal. “With a newly elected government more committed than ever to equality, now is the time to complete this important work by updating Nepal’s civil code and ensuring marriage equality is fully and clearly protected in law.”

Dhakal in the press release said the Blue Diamond Society “looks forward to working constructively with the government of Nepal, lawmakers, and civil society partners to ensure the court’s vision of equality is fully realized.”

“The Supreme Court has spoken clearly,” Dhakal said. “The government has expressed its support for equality. We are encouraged by that commitment and urge Parliament to act swiftly so that every LGBTQIA+ couple in Nepal can access marriage with certainty, dignity, and respect. Nepal has already taken a historic step. Now it is time to finish the job.”

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