Following the Supreme Court’s historic decision striking down Section 3 of the Defense of Marriage Act (DOMA), Attorney General Eric Holder on Friday issued a formal report on the yearlong effort by the Justice Department and other federal agencies to implement the decision smoothly across the entire government.
“I am pleased to report that agencies across the federal government have implemented the Windsor decision to treat married same-sex couples the same as married opposite-sex couples for the benefits and obligations for which marriage is relevant, to the greatest extent possible under the law,” Holder wrote in the memorandum to President Obama. “The implementation of the Windsor decision across the entire federal government is an accomplishment that reflects countless hours of hard work, cooperation, and coordination across agencies. As additional issues arise, we will continue to work together to uphold this Administration’s fundamental commitment to equal treatment for all Americans, and to extend this fundamental equality to all Americans.”
In the meantime, both the VA and Social Security Administration have sought to extend benefits to the absolute maximum extent, seeking out all legally available authority. As a result, for instance, the announced Friday that the VA Acting Secretary has determined that he will exercise his broad statutory discretion in the area of burial benefits to designate any individual in a committed relationship for burial in a national cemetery, which will allow for the inclusion of same-sex spouses where the domicile provision would otherwise govern. In addition, SSA will extend survivor benefits, lump sum death benefits and aged spouse benefits to same-sex couples if one partner could inherit from the other partner on the same terms as a spouse under state law. This expands the number of states in which these benefits can be extended.
The Obama administration – almost simultaneously – announced the expansion of federal benefits to same-sex married couples. This announcement comes after the Department of Justice completed their year-long review of potential legal barriers to these benefits after the Supreme Court struck down Section 3 of DOMA.
Among the Social Security provisions that are not available to couples in most states is the Social Security Survivors Benefit. The unavailability of this protection puts a surviving spouse in a potentially very vulnerable financial situation. Sandy and Doug are an older married gay couple who live in North Carolina who currently suffer the impact. In order to receive the Social Security Survivor Benefit in the case of either of them passing away, they would need to move to another state where their marriage is legally respected, leaving behind their four grown children, four grandchildren, Sandy’s 91-year-old mother, and Sandy’s job of 23 years.
“Since the landmark Supreme Court decision last year in U.S. v. Windsor, the Obama Administration has moved with tremendous leadership, skill, and fidelity to the Constitution’s command of equality to implement a wide range of federal protections for married same-sex couples,” said Freedom to Marry President Evan Wolfson. “Gay couples who are married, like non-gay married couples, now share in the crucial federal safety-net of protections and responsibilities, even in states that continue to discriminate. But because of ongoing marriage discrimination in 31 states, hundreds of thousands of couples continue to face the cruel denial of important Social Security and veterans’ benefits. Congress should move swiftly to pass curative legislation for our veterans and seniors, even as we look to the federal courts and the Supreme Court to secure the freedom to marry and equal protection nationwide. America is ready for the freedom to marry, and every day of denial is a day of hardship, injustice, and indignity. It’s time to end marriage discrimination once and for all.”
“As we near the one-year anniversary of the historic Supreme Court ruling striking down DOMA, today’s news is one of relief and celebration for many of the committed, same-sex couples across America whose lives have been put on hold waiting for this report. These couples, many of them our nation’s heroes, will no longer have to face uncertainty while caring for or mourning the loss of a loved one,” Senator Patty Murray (D-WA), author of the Social Security and Marriage Equality (SAME) Act said. “However, I am disappointed there are still many couples seeking Social Security benefits who will continue to be viewed as second-class citizens in the eyes of the law. Your zip code should not determine whether or not your family will have the means to survive after the death of a spouse, and it shouldn’t prevent your family from getting the benefits you have earned.”
“While I believe the administration had the ability to include these benefits in today’s announcement, my SAME Act now provides a legislative roadmap to finally provide these benefits to all couples, regardless of where they live. This seemingly subjective denial spousal benefit claims places an economic and emotional burden on the families of legally married same-sex couples, and it is inconsistent with the practice of other federal departments and agencies,” Murray added. “In the coming days I will be working with my colleagues in the House and the Senate to get this job done. I also urge the administration to continue holding the applications of those who have applied for Social Security benefits until Congress or the courts act to fix this unfortunate gap in benefits.”
In May, Senators Murray and Mark Udall (D-CO) introduced the SAME Act to amend the Social Security Act in order to provide full benefits to married, same-sex couples regardless of where they live. Eligibility for spousal benefits provided under the Social Security Act are determined by a place of residence standard. This standard has resulted in applications for Social Security benefits for legally married same-sex spouses living in states that do not recognize same-sex marriage being placed on hold. Representative Ron Kind (D-WI) introduced the companion legislation in the House of Representatives.
In March of last year, Senator Murray, a senior member of the Senate Veterans’ Affairs Committee, led a letter to Department of Veterans Affairs Secretary Eric Shinseki calling for an expedited waiver process granting same-sex veterans and their spouses burial rights in national cemeteries. Today’s announcement also included directive that the VA Acting Secretary will “exercise his broad statutory discretion in the area of burial benefits to designate any individual in a committed relationship for burial in a national cemetery, which will allow for the inclusion of same-sex spouses where the domicile provision would otherwise govern.”
Director of Constitutional Litigation for Lambda Legal, Susan Sommer, said: “We very much appreciate all that the Department of Justice and this Administration have done to implement the Windsor decision and be true to the U. S. Supreme Court’s condemnation of discrimination against married same-sex families. Our nation has come far this last year. But because the implementation falls short of reaching all married same-sex couples no matter where they live, continuing hardships will need resolution as quickly as possible.”
Sommer added: “Older LGBT people – those who have already borne the brunt of decades of antigay discrimination in this country – will suffer the most if they cannot access critical benefits for veterans, the aging and their spouses. Sadly, many of the most vulnerable members of our community continue to carry the burden of discrimination against LGBT families. We will continue to work to make sure that married same-sex couples are respected no matter where they live.”
Just prior to the release of the report, the Department of Labor issued a notice of proposed rulemaking which will permit same-sex couples to access leave under the Family Medical Leave Act (FMLA) regardless of state of residence. The Office of Personnel Management also announced the intent to extend family leave to all federal employees who are married to a same-sex spouse.
“Freedom to Marry worked closely with Gay & Lesbian Advocates & Defenders, Lambda Legal, the ACLU, and the National Center for Lesbian Rights, as well as others, to encourage and assist the Obama Administration in shifting the federal government from being the number one discriminator against gay people to, now, putting its moral and legal weight on the side of our families, the Constitution, and the freedom to marry,” said Wolfson. “But it’s time for Congress, and especially the Supreme Court, to finish the job.”
“Under the President’s leadership, the Obama administration has demonstrated an unwavering commitment to ensuring all committed and loving gay and lesbian couples benefit from the Supreme Court’s historic ruling in Windsor last year,” said Human Rights Campaign Legal Director Sarah Warbelow. “This report should serve as a clarion call for Congress to finish the job.”
Most federal agencies have implemented a “state of celebration” standard for determining whether a couple is married. A uniform standard of eligibility based on the state of celebration provides all couples, and the federal government, with a permanent marital status for purposes of federal benefits regardless of relocation or travel after marriage. However, some federal agencies, including the SSA and the VA are limited in their ability to provide all benefits to couples and individuals if their marriage is not recognized in the state in which they live. Determining eligibility based on the state of domicile of a couple promotes the growing disparity in quality of life and economic security for same-sex couples based solely on geography. It also fails to resolve the inconsistency issues facing same-sex couples who are legally married in a home state and must relocate to a non-recognition state.