News
Fed’l benefits issues linger post-DOMA for gay couples
Questions remain on Social Security, taxes, veterans benefits and family leave
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.”
District of Columbia
Capital Stonewall Democrats elect new leaders
LGBTQ political group set to celebrate 50th anniversary
Longtime Democratic Party activists Stevie McCarty and Brad Howard won election last week as president and vice president for administration for the Capital Stonewall Democrats, D.C.’s largest local LGBTQ political organization.
In a Feb. 24 announcement, the group said McCarty and Howard, both of whom are elected DC Advisory Neighborhood Commissioners, ran in a special Capital Stonewall Democrats election to fill the two leadership positions that became vacant when the officers they replaced resigned.
Outgoing President Howard Garrett, who McCarty has replaced, told the Washington Blade he resigned after taking on a new position as chair of the city’s Ward 1 Democratic Committee. The Capital Stonewall Democrats announcement didn’t say who Howard replaced as vice president for administration.
The group’s website shows its other officers include Elizabeth Mitchell as Vice President for Legislative and Political Affairs, and Monica Nemeth as Treasurer. The officer position of secretary is vacant, the website shows.
“As we look toward 2026, the stakes for D.C. and for LGBTQ+ communities have never been clearer,” the group’s statement announcing McCarty and Howard’s election says. “Our 50th anniversary celebration on March 20 and the launch of our D.C. LGBTQ+ Voter’s Guide mark the beginning of a major year for endorsements, organizing, and coalition building,” the statement says.
McCarty said among the organization’s major endeavors will be holding virtual endorsement forums where candidates running for D.C. mayor and the Council will appear and seek the group’s endorsement.
Founded in 1976 as the Gertrude Stein Democratic Club, the organization’s members voted in 2021 to change its name to Capital Stonewall Democrats. McCarty said the 50th anniversary celebration on March 20, in which D.C. Mayor Muriel Bowser and members of the D.C. Council are expected to attend, will be held at the PEPCO Gallery meeting center at 702 8th St., N.W.
Federal Government
Two very different views of the State of the Union
As Trump delivered his SOTU address inside the Capitol, Democratic lawmakers gathered outside in protest, condemning the administration’s harmful policies.
As President Donald Trump delivered his State of the Union address inside the U.S. Capitol — touting his achievements and targeting political enemies — progressive members of Congress gathered just outside in protest.
Their message was blunt: For many Americans, particularly LGBTQ people, the country is not better off.
Each year, as required by Article II, Section 3 of the Constitution, the president must “give to the Congress Information of the State of the Union.” The annual address is meant to outline accomplishments and preview the year ahead. This year, Trump delivered the longest State of the Union in U.S. history, clocking in at one hour and 48 minutes. He spoke about immigration, his “law and order” domestic agenda, his “peace through strength” foreign policy doctrine, and what he framed as the left’s ‘culture wars’ — especially those involving transgender youth and Christian values.
But one year into what he has called the “Trump 2.0” era, the picture painted outside the Capitol stood in stark contrast to the one described inside.
Transgender youth
In one of the most pointed moments of his speech, Trump spotlighted Sage Blair, using her story to portray gender-affirming care as coercive and dangerous. Framing the issue as one of parental rights and government overreach, he told lawmakers and viewers:
“In the gallery tonight are Sage Blair and her mother, Michelle. In 2021, Sage was 14 when school officials in Virginia sought to socially transition her to a new gender, treating her as a boy and hiding it from her parents. Hard to believe, isn’t it? Before long, a confused Sage ran away from home.
“After she was found in a horrific situation in Maryland, a left-wing judge refused to return Sage to her parents because they did not immediately state that their daughter was their son. Sage was thrown into an all-boys state home and suffered terribly for a long time. But today, all of that is behind them because Sage is a proud and wonderful young woman with a full ride scholarship to Liberty University.
“Sage and Michelle, please stand up. And thank you for your great bravery and who can believe that we’re even speaking about things like this. Fifteen years ago, if somebody was up here and said that, they’d say, what’s wrong with him? But now we have to say it because it’s going on all over, numerous states, without even telling the parents.
“But surely, we can all agree no state can be allowed to rip children from their parents’ arms and transition them to a new gender against the parents’ will. Who would believe that we’ve been talking about that? We must ban it and we must ban it immediately. Look, nobody stands up. These people are crazy. I’m telling you, they’re crazy.”
The story, presented as encapsulation of a national crisis, became the foundation for Trump’s renewed call to ban gender-affirming care. LGBTQ advocates — and those familiar with Blair’s story — argue that the situation was far more complex than described and that using a single anecdote to justify sweeping federal restrictions places transgender people, particularly youth, at greater risk.
Equality Virginia said the president’s remarks were part of a broader effort to strip transgender Americans of access to care. In a statement to the Blade, the group said:
“Tonight, the president is choosing to double down on efforts to disrupt access to evidence-based, lifesaving care.
“Rather than allowing families and doctors to navigate deeply personal medical decisions free from federal interference — or allowing schools to respond with nuance and compassion without putting marginalized children at risk — the president is instead advocating for reckless, one-size-fits-all political control.
“At a time when Virginians are worried about rising costs, economic uncertainty, and aggressive immigration enforcement actions disrupting communities and families, attacking transgender young people is a blatant political distraction from the real challenges facing our nation. Virginia families and health care providers do not need Donald Trump telling them what care they do or do not need.”
For many in the LGBTQ community, the rhetoric inside the chamber echoed actions already taken by the administration.
Earlier this month, the Pride flag was removed from the Stonewall National Monument under a National Park Service directive that came from the top. Community members returned to the site, raised the flag again, and filed suit, arguing the removal violated federal law. To advocates, the move was symbolic — a signal that even the legacy of LGBTQ resistance was not immune.
Immigration and fear
Immigration dominated both events as well.
Inside the chamber, Trump boasted about the hundreds of thousands of immigrants detained in makeshift facilities. Outside, Democratic lawmakers described those same facilities as concentration camps and detailed what they characterized as the human toll of the administration’s enforcement policies.
Sen. Ed Markey (D-Mass.), speaking to the crowd, painted a grim picture of communities living in fear:
“People are vanishing into thin air. Quiet mornings are punctuated by jarring violence. Students are assaulted by ICE agents sitting outside the high school, hard working residents are torn from their vehicles in front of their children. Families, hopelessly search for signs of their loved ones who have stopped answering their phones, stop replying to text… This is un-American, it is illegal, it is unconstitutional, and the people are going to rise up and fight for Gladys Vega and all of those poor people who today need to know that the people’s State of the Union is the beginning of a long fight that is going to result in the end of Republican control of the House of Representatives and the Senate in the United States of America in 2026.”
Speakers emphasized that LGBTQ immigrants are often especially vulnerable — fleeing persecution abroad only to face detention and uncertainty in the United States. For them, the immigration crackdown and the attacks on transgender health care are not separate battles but intertwined fronts in a broader cultural and political war.
Queer leadership
After delivering remarks alongside Robert Garcia, Kelley Robinson, president of the Human Rights Campaign, took the stage and transformed the freezing crowd’s anger into resolve.
Garcia later told the Blade that visibility matters in moments like this — especially when LGBTQ rights are under direct attack.
“We should be crystal clear about right now what is happening in our country,” Garcia said. “We have a president who is leading the single largest government cover up in modern history, we have the single largest sex trafficking ring in modern history right now being covered up by Donald Trump and Pam Bondi In the Department of Justice. Why are we protecting powerful, wealthy men who have abused and raped women and children in this country? Why is our government protecting these men at this very moment? In my place at the Capitol is a woman named Annie farmer. Annie and her sister Maria, both endured horrific abuse by Jeffrey Epstein and Ghislaine Maxwell. As we move forward in this investigation, always center the survivors; we are going to get justice for the survivors. And Donald Trump may call this investigation a hoax. He may try to deflect our work, but our message to him is very clear that our investigation is just getting started, and we will we will get justice for these survivors.”
He told the Blade afterwards that having queer leaders front and center is itself an act of resistance.
“I obviously was very honored to speak with Kelley,” the California representative said. Kelley is doing a great job…it’s important that there are queer voices, trans voices, gay voices, in protest, and I think she’s a great example of that. It’s important to remind the country that the rights of our community continue to be attacked, and then we’ve got to stand up. Got to stand up for this as well.”
Robinson echoed that call, urging LGBTQ Americans — especially young people — not to lose hope despite the administration’s escalating rhetoric.
“There are hundreds of thousands of people that are standing up for you every single day that will not relent and will not give an inch until every member of our community is protected, especially our kids, especially our trans and queer kids. I just hope that the power of millions of voices drowns out that one loud one, because that’s really what I want folks to see at HRC. We’ve got 3.6 million members that are mobilizing to support our community every single day, 75 million equality voters, people that decide who they’re going to vote for based on issues related to our community. Our job is to make sure that all those people stand up so that those kids can see us and hear our voices, because we’re going to be what stands in the way.”
A boycott — and a warning
The list of Democratic lawmakers who boycotted the State of the Union included Sens. Ruben Gallego, Ed Markey, Jeff Merkley, Chris Murphy, Adam Schiff, Tina Smith, and Chris Van Hollen, along with dozens of House members.
For those gathered outside — and for viewers watching the livestream hosted by MoveOn — the counter-programming was not merely symbolic. It was a warning.
While the president spoke of strength and success inside the chamber, LGBTQ Americans — particularly transgender youth — were once again cast as political targets. And outside the Capitol, lawmakers and advocates made clear that the fight over their rights is far from over.
Virginia
Va. activists preparing campaign in support of repealing marriage amendment
Referendum about ‘dignity and equal protection under the law’
Virginia voters in November will vote on whether to repeal their state’s constitutional amendment that defines marriage as between a man and a woman.
Democratic Gov. Abigail Spanberger on Feb. 6 signed House Bill 612 into law. It facilitates a referendum for voters to approve the repeal of the 2006 Marshall-Newman Amendment. Although the U.S. Supreme Court’s Obergefell ruling extended marriage rights to same-sex couples across the country in 2014, codifying marriage equality in Virginia’s constitution would protect it in the state in case the decision is overturned.
Maryland voters in 2012 approved Question 6, which upheld the state’s marriage equality law, by a 52-48 percent margin. Same-sex marriage became legal in Maryland on Jan. 1, 2013.
LGBTQ advocacy groups and organizations that oppose marriage equality mounted political campaigns ahead of the referendum.
Equality Virginia has been involved in advancing LGBTQ rights in Virginia since 1989.
Equality Virginia is working under its 501c3 designation in conjunction with Equality Virginia Advocates, which operates under a 501c4 designation, to plan campaigns in support of repealing the Marshall-Newman Amendment.
The two main campaigns on which Equality Virginia will be focused are education and voter mobilization. Reed Williams, the group’s director of digital engagement and narrative, spoke with the Washington Blade about Equality Virginia’s plans ahead of the referendum.
Williams said an organization for a “statewide public education campaign” is currently underway. Williams told the Blade its goal will be “to ensure voters understand what this amendment does and why updating Virginia’s constitution matters for families across the commonwealth.”
The organization is also working on a “robust media and voter mobilization campaign to identify and turn out voters” to repeal Marshall-Newman Amendment. Equality Virginia plans to work with the community members to guarantee voters are getting clear and accurate information regarding the meaning of this vote and its effect on the Virginia LGBTQ community.
“We believe Virginia voters are ready to bring our constitution in line with both the law and the values of fairness and freedom that define our commonwealth,” said Equality Virginia Executive Director Narissa Rahaman. “This referendum is about ensuring loving, committed couples and their families are treated with dignity and equal protection under the law.”
The Human Rights Campaign has also worked closely with Equality Virginia.
“It’s time to get rid of outdated, unconstitutional language and ensure that same sex couples are protected in Virginia,” HRC President Kelley Robinson told the Blade in a statement.
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