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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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Arizona

Shooting outside gay bar in Ariz. leaves three dead

Tucson police investigating double murder-suicide as a hate crime

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The shooting happened outside Venture-N bar in Tucson, Ariz. (Washington Blade photo by Michael K. Lavers)

Three people were fatally shot outside a gay bar in Tucson, Ariz., early Monday morning, about a mile from the city’s nightlife district.

Police have said the shooting, which took place in the parking lot of Venture-N bar at 1239 N. 6th Ave., was likely a hate crime and a double murder-suicide following a verbal altercation.

The suspect, Ousman Ceesay, allegedly shot Vincent Anthony Siqueiros and Cameron Davis Capara while they were outside the club around 12:30 a.m. Monday.

Reports show Capara and Siqueiros were pronounced dead at the scene. Ceesay died after being taken to a local hospital with gunshot wounds.

Police have also said that Ceesay was carrying a list of LGBTQ businesses at the time of the shooting.

Arizona Public Media has said police are investigating the case as a hate crime because the suspect was carrying a note containing the names of multiple LGBTQ-associated businesses.

“I am deeply saddened that another senseless loss of life has happened in our community,” Tucson Police Chief Monica Prieto said in a statement. “Bias-based crimes are especially heinous and have no place in our community.”

According to Prieto, there is no imminent threat to the community, and the Tucson Police Department is working to provide extra protection to various LGBTQ businesses across town.

Congresswoman Adelita Grijalva, who represents the area, issued a statement condemning the act of violence, which appears to have been at least in part motivated by homophobia.

“I am disgusted and deeply saddened to learn of a targeted act of hate and the cold-blooded murder of two members of our LGBTQIA+ community, Vincent Siqueiros and Cameron Capara, at the Venture-N bar in Tucson last night. This horrific attack is a painful reminder that even in welcoming communities like Tucson, hate and violence against the LGBTQIA+ community still exist.”

“When that hate is combined with easy access to firearms, the consequences can be deadly. I am sick and tired of Congress refusing to lift a finger to protect our communities while, every day, dozens of people are shot and killed across the country. It does not have to be this way. The House of Representatives is returning to session this week, and our first action should be passing common-sense gun safety reforms that we know can save lives.”

Other federal lawmakers also condemned the shooting.

The Congressional Equality Caucus, which is made up of federal legislators advancing LGBTQ interests, issued a statement after news broke.

“Our hearts are with the friends and loved ones of the victims of this devastating attack outside a Tucson gay bar and with the Tucson LGBTQI+ community,” it said on X. “No one should fear violence because of who they are — and we’re going to continue fighting to build a world where no one does.”

The Human Rights Campaign, the largest LGBTQ organization in the country, released a statement following the shooting.

“We are heartbroken by the loss of Vincent Anthony Siqueiros and Cameron Davis Capara and our hearts are with their families, loved ones, and the entire Tucson LGBTQ+ community. Once again, we are reminded that gun violence robs people of their lives, destroys families, and devastates communities.”

A candlelight vigil honoring the victims is planned for Sept. 2 at 6:30 p.m. at Catalina Park in North Tucson.

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District of Columbia

‘People don’t see me. They see a trend’

New popularity of all things Asian warps view of multiple cultures

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Lily Brugman (Photo courtesy of Lily Brugman)

As I was growing up, my parents often shared stories about how they were bullied when they were my age, just for being Asian. My mom is Cambodian and my dad is “Wasian,” Chinese and white. Students teased them for their looks, their homemade lunches, and treated their traditional holidays as jokes.

I once asked my mom when I was little if she could pack me dumpling leftovers for lunch. “Yes,” she said with a surprised look, adding, “I would have never wanted to bring dumplings to school when I was your age because I would always get bullied for them. I’m glad times have changed.” 

At the time, I was confused. Whenever I brought a homemade Asian dish to school for lunch, I was happy to hear intriguing and curious questions from the other kids. It felt good to have my meal be popular and different from the Lunchables everyone else had.

Though times have changed, racism still continues. It just has a new face. Today, social media pretends to flatter our cultures in an insincere way trying to gain popularity just for clicks. Think anything from K-pop to Japan’s surge in international tourism. Even Starbucks has added drinks with the flavor of ube yam, native to the Philippines, onto its menu.

I feel that now when people see me, they don’t see me, they see a trend. 

For years, Asian people have been portrayed as foreign or exotic. The new embrace of foods and fashion at first felt good. Asians have never been represented as much as they’ve deserved. 

But this new popularity warps what non-Asians see. Instead of the blunt and direct racism my parents faced, everything now is a gray area, more discreetly hidden behind some TikTok video. It actually normalizes racism and stereotypes.

Whitewashing my culture 

As a 15-year-old Asian American who lives in D.C., I’ve always been one of the few Asian kids in school; my high school today counts less than 2 percent of students as being of Asian descent. I remember always being called “that one Asian girl” or some slur a kid learned from their parents. Every time I search for something related to Asian culture, such as a recipe or maybe a holiday, it’s always the same thing: some white person whitewashing my culture.

Social media is the main culprit, of course. I realized this when I entered high school and got a phone and was introduced to the internet. That is when I realized how messed up the new stereotypes around Asians are. 

One pattern I started to notice was people wanting to be Asian just because it was popular. It was hurtful, patronizing, and annoying. They made assumptions about our race and then only found us “cool” because we were trending. How can people go from hating us or finding us weird, to then only liking us because we’re popular?

There was a trend going around on TikTok called “race change to another” or RCTA.  It is this trend of people manifesting certain physical traits to change their appearance in order to change races. According to journalist Emi Tran, writing then as an intern for NBC Digital, the trend started when a white woman wanted to be Japanese. The woman began posting TikTok videos of herself wishing for different features such as monolids. Tran wrote in that 2023 article that “the overwhelming majority of the RCTA community wants to be East Asian.”

People also look up to K-pop culture, idolizing the pop groups pulled together by big entertainment companies. Most people expect all Koreans to be K-pop fans. Korean friends are asked about K-pop all the time even though they are not into the South Korean music genre.

Although I am not South Korean — I am half Cambodian and Chinese — I still get asked, almost like I’m expected, “You’re really into this group, right?” or “Can you tell me how to pronounce this member’s name?”

I was asked even worse questions during COVID-19. Suddenly, discrimination and violence were increasing specifically toward Asians everywhere. Suddenly, almost everyone was blaming Chinese people for spreading and causing COVID-19.

I remember going to school for one of the last times before quarantine had started and hearing kids whisper, “Oh, she’s going to give us the Coronavirus.” President Donald Trump had publicly posted his opinions about the situation on social media, blaming China for the pandemic, even calling it the “Chinese Virus” or the “Wuhan Virus.” According to NPR, anti-Asian hate crimes in U.S. cities surged 149 percent that year.

Lily Brugman’s parents (Photo courtesy of Lily Brugman)

The topic of Asians in the media has always been complicated. One moment people can hate us for being weird and different and the next we’re suddenly popular and cool for the same reasons. 

I feel conflicted on whether I should feel happy that we’re being represented or angry that it’s all for the wrong reason and has the wrong effects.

Lily Brugman is a sophomore at Benjamin Banneker Academic High School, one of Youthcast Media Group’s journalism class partners. She worked with YMG volunteer and Professor Emerita in journalism at American University Amy Eisman on this piece.

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District of Columbia

Gay men linked to 2006 Wone murder failing to make lawsuit settlement payment

Stabbing death of D.C. attorney in house near Dupont Circle startled community

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Robert Wone was stabbed to death 20 years ago.

The wife of D.C. attorney Robert Wone, who was found stabbed to death on Aug. 2, 2006, in the Dupont Circle area home of three gay men, has filed a complaint in court accusing two of the men of failing to make the payments they promised to make to settle a $20 million wrongful death lawsuit the wife filed against them  in 2008.

The court filings in D.C. Superior Court in May of this year by Katherine Wone provide new details of the lawsuit settlement related to a 20-year-old murder case that observers have compared to a murder mystery novel involving three gay men and the fatal stabbing of their friend whose wife insists was straight.

Court records and D.C. police reports show that Robert Wone was said to  have arrived at the townhouse of his long-time college friend Joe Price after spending all day and part of the night working late at his downtown office at Radio Free Asia.

Price, a gay rights attorney at that time associated with the LGBTQ group Equality Virginia, and his partner Victor Zaborsky and their housemate Dylan Ward – who were also friends of Wone – said later that they invited Wone to spend the night in their guest bedroom so he wouldn’t have to drive home to Oakton, Va., where he and his wife lived, before having to return to work in D.C. the next morning.

Court records show that later that night D.C. police responded to a 911 emergency call made by Zaborsky to the gay men’s house at 1509 Swann Street, N.W. and found Wone stabbed to death on what appeared to be a neatly arranged bed.

The three men told police they were certain an intruder entered the house and stabbed Wone while they were asleep in their bedrooms. But homicide detectives reported that the crime scene appeared to have been cleaned up and possible evidence tampered with.

After the investigation dragged on for more than two years, prosecutors obtained an indictment against the three men on charges of obstruction of justice, conspiracy to obstruct justice, and evidence tampering in connection with the Wone murder. No murder-related charges were brought, prompting legal observers to conclude that authorities didn’t have sufficient evidence to charge the men with murder.

But a detailed arrest affidavit filed and released at the time the charges were brought against the three gay men startled those who knew them and created a sensation in the surrounding community, especially the LGBTQ community.

Among other things, it said autopsy findings and physical evidence indicated that Wone had been restrained or immobilized by a paralytic drug before being stabbed. It said three stab wounds on Wone’s chest and abdomen were surgical in nature, with no indication that Wone moved or tried to defend himself while being stabbed.

In addition, the affidavit said the autopsy found needle marks on Wone’s body that were not made by emergency medical technicians that arrived on the scene and examined Wone. 

At the advice of their attorneys, the three men chose to wave their right to a jury trial and requested that Superior Court Judge Lynn Leibovitz preside over the trial and render the verdict. Following testimony by expert witnesses on both sides, after the men chose not to testify, and dramatic closing arguments by prosecutors and the defense attorneys, the judge found the men not guilty on all three charges. 

In a lengthy written verdict, she read from the bench, Leibovitz said while she believed there was significant evidence implicating the defendants, there continued to be reasonable doubt on all charges against them. However, she said she did find that prosecutors established beyond probable cause that Wone was not murdered by an intruder who entered the house while the three men were asleep.

“Nevertheless, after lengthy analysis of the evidence, I conclude that the government has failed to prove beyond a reasonable doubt the essential elements of obstruction of justice or evidence tampering,” Leibovitz said in delivering her verdict.  

While greatly relieved by the not guilty verdict, Price, Zaborsky, and Ward were still facing a $20 million wrongful death lawsuit that Katherine Wone filed against them prior to their criminal trial. As the two sides prepared for a civil trial the defense team announced the three gay men would invoke their Fifth Amendment constitutional right to refuse to testify at the civil trial on grounds that their testimony could lead to self-incrimination.

Possibly because of that or other reasons, Katherine Wone announced that she and the three men had reached an out of court monetary settlement of the lawsuit, the terms of which would not be publicly disclosed. 

In her recent court filings in May on behalf of the Estate of Robert Wone, which were filed against Price and Zaborsky but not against Ward, Katherine Wone charges the two men with failing to pay thousands of dollars as part of the settlement agreement. Separate complaints she filed against them disclose for the first time that Price had agreed to an $80,000 settlement amount in 2011 to be paid through monthly installments over the next 20 years.  

The non-payment complaint filed against Zaborsky by Wone states that he had agreed to a settlement in 2011 of $66,000 also to be paid over 20 years in 240 monthly payments. 

Although the initially filed $20 million lawsuit also named Dylan Ward as a defendant, court records do not show any complaint filing against Ward for nonpayment, leading some observers to speculate that Ward may have already paid the full sum of whatever amount Wone’s lawsuit sought from him. 

The Washington Post has reported that court filings show that as of May 29 of this year, Price owed $56,893.75 and Zaborsky owed $31,753.75 in missed payments and bounced checks plus fees and interest.

The two complaints filed by Wone against the two men also state that the settlement agreement they signed allows the Wone estate to call for the “immediate” payment of the entire amount they agreed to pay if they default on their monthly payments.  

Court records show that a “remote scheduling conference” before a debt collection judge was scheduled to take place in D.C. Superior Court on Sept. 22.           

Price, Zaborsky, and Ward have declined to respond to press inquiries including inquiries from the Washington Blade regarding the criminal trial and lawsuit. The non-payment complaints filed by  Katherine Wone show that Price’s current residence is in Ft. Lauderdale, Fla. and Zaborsky now resides in Tamarac, Fla.

News of the latest complaints filed against Price and Zaborsky for nonpayment of the lawsuit settlement payments was first reported on Aug. 2 by the website called Who Murdered Robert Wone, which was created by four gay men shortly after Wone’s 2006 murder.

“We’re left to wonder if the threesome, or whoever remains of it now, will ever come clean on what they know and may have done,” Craig Brownstein, one of the men who created the website stated in the Aug. 2 posting. “The optimists will hope for a confession of some sort, an explanation, the pessimists are convinced they’ll take their secrets to the grave,” Brownstein wrote. “Time will tell.”

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