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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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Cuba

When impunity meets history

Raúl Castro indicted for alleged role in shooting down Brothers to the Rescue aircraft

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Former Cuban President Raúl Castro (Photo by Golden Brown/Bigstock)

The scene would have seemed impossible only a few years ago.

The name of Raúl Castro Ruz appearing formally inside a United States federal criminal indictment. Cuba’s former general of the Army, for decades one of the most powerful figures inside the Havana regime, accused in connection with the shootdown of the Brothers to the Rescue aircraft and the deaths of American citizens in 1996. And all of it unfolding in Miami, inside the Freedom Tower, on May 20.

That detail matters.

Because this indictment arrives at one of the most fragile and politically tense moments in recent relations between Washington and Havana. It comes as Cuba faces deep economic collapse, growing political exhaustion, mass migration, blackouts, and increasing public frustration both inside and outside the island. It also arrives on a date carrying enormous symbolic weight for Cuban exiles — the anniversary of the founding of the Cuban Republic in 1902.

But the true significance of this moment goes far beyond symbolism.

What happened in Miami represents something much larger: the collapse of the idea that certain men would never face accountability.

For decades, Raúl Castro embodied the permanence of revolutionary power in Cuba. Defense minister. Military strategist. The man who oversaw the armed forces for generations. One of the central architects of the Cuban political and security apparatus built alongside Fidel Castro. A figure many believed would leave this world untouched by any court, shielded forever by power, time, and history itself.

Today the image is very different.

Today his name appears inside the language of American criminal prosecution.

And that changes the historical dimension of this case completely.

Because this is no longer simply a political accusation voiced by the Cuban exile community. It is now a formal federal criminal indictment publicly announced by the United States government against one of the highest-ranking figures in the history of the Cuban regime.

The setting itself carried enormous meaning.

The Freedom Tower is not just another building in Miami. For generations of Cuban exiles it represents memory, displacement, survival, and the beginning of a new life after fleeing Cuba. Thousands of Cubans passed through those doors after escaping the revolution. Families arrived carrying fear, uncertainty, grief, and hope all at once. Announcing these charges from that location transformed the moment into something far deeper than a legal proceeding.

And the people witnessing it were not only members of the exile community.

Among those present were relatives of the young men killed nearly 30 years ago. Families who spent decades waiting to hear words they feared might never come. Families who carried the weight of loss while believing the men responsible would never be formally accused by any court.

That emotional weight still surrounds this case.

On Feb. 24, 1996, two civilian aircraft operated by Brothers to the Rescue were shot down over the Florida Straits by Cuban military jets. Armando Alejandre Jr., Carlos Costa, Mario de la Peña, and Pablo Morales were killed. The flights were connected to humanitarian rescue efforts searching for Cubans attempting to flee the island during the migration crisis of the 1990s.

Those aircraft were not military bombers.

They were not attacking Cuba.

They were civilian planes associated with rescue operations involving Cubans risking their lives at sea.

That reality has always shaped how this tragedy lives inside the memory of the Cuban exile community.

For many, this was never viewed simply as a geopolitical conflict between hostile governments. It was seen as the use of military force against civilians connected to humanitarian missions during one of the darkest chapters in modern Cuban migration history.

But for many Cubans, the indictment reaches far beyond the Brothers to the Rescue case itself.

It touches decades of unresolved pain tied to one of the central figures behind Cuba’s military and political system.

It reaches mothers who buried sons lost in compulsory military service or in distant wars they never chose to fight. Families who spent years believing promises that were never fulfilled. Political prisoners who disappeared into silence. Relatives who watched loved ones die trying to flee the island.

And for many LGBTQ Cubans, the moment carries another layer of historical weight.

Long before official campaigns promoting tolerance and inclusion emerged from within the Cuban government, there were years of persecution, fear, forced silence, and humiliation carried out under the revolutionary system itself.

The UMAP labor camps remain one of the deepest scars in modern Cuban history. Gay men, pastors, religious believers, artists, and others considered incompatible with the revolutionary ideal were sent away under the language of “re-education” and forced labor.

In recent decades, public gestures toward LGBTQ inclusion promoted by figures close to the Cuban leadership attempted to project an image of progress and openness to the international community. But for many survivors, and for many Cuban LGBTQ people, those gestures never erased the trauma or the historical responsibility tied to the same structures of power that once persecuted them.

For many, acknowledgment without accountability still feels painfully incomplete.

That is why this indictment resonates so deeply today.

Because it arrives while Cuba once again faces profound national crisis. The island is losing entire generations through migration. Public frustration continues to grow. Economic collapse shapes daily life. And the revolutionary narrative that once projected permanence and control appears increasingly eroded by reality itself.

Against that backdrop, the image emerging from Miami becomes even more striking.

A man once viewed as untouchable by history now formally accused by the United States government and legally transformed into a fugitive wanted by American justice.

History moves slowly until suddenly it does not.

And for many Cubans, both on the island and throughout the diaspora, what happened today inside the Freedom Tower felt like witnessing something they once believed they would never live long enough to see.

As a Cuban, as an immigrant, and as someone who has lived close to that pain, one thought keeps returning tonight:

Justice takes time.

But when it finally arrives, it arrives with history behind it.

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Comings & Goings

Delaware governor honors Peter Schott

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Peter Schott

The Comings & Goings column is about sharing the professional successes of our community. We want to recognize those landing new jobs, new clients for their business, joining boards of organizations and other achievements. Please share your successes with us at [email protected]

Congratulations to Peter Schott on being honored by Delaware Gov. Matt Meyer on National Honor our LGBTQ Elders Day.

Schott is a prominent LGBTQ advocate and seasoned political strategist who has spent decades advancing civil rights at the national and state levels. Following a distinguished 25-year career as a staff assistant in the U.S. House of Representatives, Schott leveraged his extensive legislative expertise to help organize the National Stonewall Democrats, serving as an influential member of its national board. 

After moving to Delaware in 2002, he became a foundational figure in the state’s LGBTQ political landscape, co-founding the Delaware Stonewall PAC, (now Stonewall Delaware) to champion the election of pro-equality candidates. His strategic lobbying and community organizing were instrumental in the successful passage of Delaware’s landmark non-discrimination, civil union, and marriage equality laws. A former member of the State Human Relations Commission, he remains a vital voice for the LGBTQ community in the Mid-Atlantic, continuing to document and drive social progress through his activism and writing. Schott currently serves as vice chair of the Delaware Democratic Pride Caucus, and a board member of Speak Out Against Hate (SOAH). He was a delegate to two Democratic National Conventions.

He earned a bachelor’s degree in Political Science, New York University; and a master’s of Public Administration degree from American University.

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Congress

Eight Democrats break with party as House advances ‘Don’t Say Trans’ bill

Measure not expected to pass in Senate

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(Washington Blade photo by Michael Key)

The U.S. House of Representatives passed a federal “Don’t Say Trans” bill on Wednesday, attempting to force teachers to out transgender students nationwide.

The bill, House Resolution 2616, also called the “Stopping Indoctrination and Protecting Kids Act,” would require schools to get parental consent before allowing students to use their preferred, rather than originally assigned, gender markers, pronouns, or preferred name on any school form, and to use any sex-based accommodations, including locker rooms or bathrooms.

The bill amends Section 8526 of the Elementary and Secondary Education Act of 1965, legislation that allows for federal aid to help elementary and secondary education programs — particularly those under its lowest-income Title I-A program — to stop allocating funds to any education that teaches concepts “related to gender ideology.”

This is directly related to Executive Order 14168, also known as the “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” order, one of President Donald Trump’s first executive orders of his second term. It requires the federal government to recognize only sex assigned at birth and dismiss gender identity rather than sex.

The bill was sponsored by U.S. Rep. Tim Walberg (R-Mich.) and passed by a 217-198 margin. The vote fell mostly along party lines; however, eight Democrats voted for its passage. They were U.S. Reps. Henry Cuellar (D-Texas), Donald Davis (D-N.C.), Cleo Fields (D-La.), Laura Gillen (D-N.Y.), Vicente Gonzalez (D-Texas), Marcy Kaptur (D-Ohio), Marie Gluesenkamp Perez (D-Wash.), and Eugene Vindman (D-Va.).

Proponents of the bill argue a child’s gender identity should be directed by parents at home rather than in public schools.

Critics say this is dangerous and will force students to be outed by their teachers to parents — some of whom may not be supportive of their gender identity — which could lead to violence or possibly conversion therapy.

California Congressman Mark Takano, chair of the Congressional Equality Caucus, spoke on the House floor while the bill was being debated. 

“Republicans claim to be the party of small government, but they have no problem bringing the full force of the federal government down against children. The GOP thinks they can legislate transgender people out of existence with this inhumane Don’t Say Trans bill, but all they’re doing is making life worse for a small minority of already-vulnerable children,” Takano said. “I spent 24 years as an educator where I worked with hundreds of high school students and their parents. Most children go to their parents when they need help or are struggling — including transgender children — but not all parents are accepting. The forced outing provision of this bill puts teachers in an impossible situation by requiring them to out trans kids to their parents in certain situations — even if the teacher knows the student will likely face physical abuse. Students like these are who Republicans want to put in immediate physical danger with this bill.”

The Washington Blade talked to Tyler Heck, founder and executive director of the trans advocacy organization and Christopher Street Project PAC, following the bill’s passage.

“Most queer kids go to their families when they are figuring out who they are, and then not all queer kids have that option,” Heck told the Blade. “If this became law, it would harm those already vulnerable kids who rely on school as a safe place and might not have a safe place at home.”

They explained this is not about protecting parents’ rights to know what is going on with their children, but rather the weaponization of trans identity that has become a mainstream Republican ideal pushed by the Trump-Vance administration.

“Young people deserve the space to figure out who they are without the federal government interfering in their lives,” they said. “It is beyond the pale, or rather it should be beyond the pale, and has become a norm for Republicans in Congress to villainize kids, because I mean, this bill targets kids, it’s in the name of the bill, and it’s in the implications.”

Heck continued, saying that amid the rising cost of everyday necessities — from gas to groceries — and while the Trump-Vance administration continues to defund programs intended to help the most vulnerable Americans while creating slush funds for political allies, this is not what Congress should be focusing on.

“At a time when people are really struggling, and politicians need to be focused on lowering costs, they’re using queer and trans kids as political pawns,” Heck said. “They want to divide and conquer this country, and we need to stand up against them and unite behind values of inclusion and of trust in our teachers.”

David Stacy, the Human Rights Campaign’s vice president of government affairs, provided a statement to the Blade.

“Trans kids are not a political agenda — they are students who deserve safety and affirmation at school like anyone else,” Stacy said. “Despite the many pressing issues facing our nation, House Republicans continue their bizarre obsession with trans people. HR 2616 does not protect children. It targets them. This bill is cruel, and we’ll continue to fight to ensure it never becomes law.”

The bill will move to the U.S. Senate in the coming days and weeks, but it must first be reviewed by a Senate committee before leadership schedules it for a floor vote, where it will need 60 votes to pass.

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