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The Supreme Court Ruling on the Defense of Marriage Act: What It Means

Society & Culture  (tags: culture, ethics, family, education, freedoms, gayrights, GoodNews, health, rights, sadness, safety, society, usa, law, government, death, children, americans )

- 1817 days ago -
This series of fact sheets produced together by: American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders | Human Rights Campaign | Immigration Equality | Lambda Leg

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JL A (281)
Thursday June 27, 2013, 6:44 am

The Supreme Court’s historic ruling striking down Section 3 of the discriminatory Defense of Marriage Act (DOMA) is an enormous victory for loving, married couples and their families, and affirms that they deserve equal treatment under the law. This victory demonstrates the importance of access to marriage, and gives married same-sex couples access to the tangible benefits of the federal safety net, allowing them to better protect one another and their children.

Edie Windsor demonstrated tremendous courage in standing up and speaking out for her 44-year relationship and marriage when she was treated unjustly, and her actions have directly improved the lives of all same-sex couples.

Ending DOMA lifts up all LGBT people, even if it does not end our work. DOMA was an official federal policy disapproving of gay people and same-sex relationships, often imitated by states and private actors, and imposed a second-class status on our lawful marriages by negating them for all federal purposes. The Court has now affirmed that equal protection guarantees apply to the relationships of LGBT people and has replaced federal disrespect with federal respect for our lawful marriages. This victory will energize our work moving forward so that we can achieve a reality in which every single same-sex couple enjoys full and equal protections under the law, regardless of where they live.

This historic decision takes effect in 25 days. For legally married couples living outside of a marriage state or the District of Columbia, there are still many questions about when they will be equally able to share in federal protections, responsibilities, and programs. This is because the federal government typically defers to the states in determining whether a couple’s marriage is valid. There is no one rule across all federal agencies. Some agencies look to the law of the state where a couple married regardless of the law of the state where the couple now lives, while others look to the law of the state where the couple is living now.

We think the federal government can and should take action, where necessary, to ensure that married couples in all states have access to the largest number of federal programs. The federal government is already looking at how federal agencies can ensure fair and equal treatment of all married couples where possible. However, at this time, there are a number of important federal benefits that depend on whether your marriage is recognized where you live, so couples who live in states with bans on marriage by same-sex couples should proceed with caution before making the decision to marry.

CAUTION: If you live in a state that discriminates against married same-sex couples, you should be aware that the Supreme Court decision striking down part of the federal so-called Defense of Marriage Act does NOT mean that your state must respect your marriage or that you will be eligible for all marriage-based federal benefits. Further work is still required to end marriage discrimination nationwide and to secure both state and federal equal treatment for all marriages.

Depending on your individual circumstances, the current patchwork of discriminatory laws may be financially detrimental to you or your partner and may create financial and legal complications for you and your family. Before making a decision, it is essential that you consult an attorney for individualized legal advice. This is particularly important for people who have or are applying for government benefits. Getting married may jeopardize your eligibility for certain public benefits without providing you the full measure of protections other married couples enjoy.

In addition, if you travel to another place to marry and then return to live in a state that does not respect your marriage, you may be unfairly unable to obtain a divorce, which can lead to serious negative legal and financial consequences. Same-sex couples will continue to endure a mix of respect, discrimination, and uncertainty until we have secured the freedom to marry and full respect nationwide. People must make careful decisions when and where to marry, even as we work together to end this injustice.

The following questions lay out what we know so far.

What does this mean for legally married same-sex couples living in a state that respects their marriage?

What about legally married same-sex couples living in a state that does not respect their marriages?

Will legally married same-sex couples receive retroactive access to benefits they were previously denied?

Is all of DOMA now completely repealed?

What are the movement’s next steps on DOMA?
What does this mean for legally married same-sex couples living in a state that respects their marriage?

Same-sex couples who are legally married and live in a state that respects their marriage should be eligible virtually right away for the same protections, responsibilities, and access to federal programs afforded to all other married couples. The federal government may take some additional time to change forms, train staff, and otherwise prepare for this change. We expect further guidance from the federal government and will update this Q&A and the “After DOMA: What it Means For You” LGBT Organization Fact Sheet Series accordingly.

There are more than 1,100 places in federal law where a protection or responsibility is based on marital status. A few key examples include access to Social Security survivors’ benefits; the option to use family medical leave to care for a spouse; the opportunity to sponsor a foreign-born spouse for citizenship; and access to veterans’ spousal benefits.

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What about legally married same-sex couples living in a state that does not respect their marriages?

Legally married same-sex couples living in a state that does not respect their marriages may right away have access to some federal rights and benefits, but not to many others, at least not immediately. Federal agencies have different approaches regarding which state’s laws they look to in order to determine if a marriage is valid for federal purposes. Some, including the IRS and Social Security, have looked to the laws of the state where a couple lives (place of domicile/residence). Others, including immigration agencies, look to where a couple got married (place of celebration). Other federal agencies and programs look to the state “with the most significant interest” in the marriage, and many have no explicit rule at all.

Some federal programs, including immigration, already use a “place of celebration” standard. This standard best provides certainty, clarity, and stability for couples, their loved ones, employers, government agencies, and others, especially in a society where people regularly move for jobs, family, and many other purposes. Such a standard would simply acknowledge that a couple is married for federal purposes regardless of where the couple lives; it wouldn’t tell a state how it must treat married same-sex couples.

For many programs, the administration can take steps to adopt the standard fairest to all married couples: the “place of celebration” standard. Some agencies can use this time-honored legal standard just by changing their practices. Others may have to change regulations, requiring a more lengthy process of proposing new rules and soliciting public comments, or laws. Because the Supreme Court’s decision does not require states to recognize the marriage of same-sex couples and does not guarantee that married couples who live in states with marriage bans will receive all of the federal benefits based on marriage, couples who live in these states should proceed with caution before deciding to marry. Depending on your individual circumstances, getting married may be financially or legally detrimental, especially if you are receiving certain government benefits. Couples should seek out individualized legal advice from a knowledgeable attorney before traveling to another place to marry.

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Will legally married same-sex couples receive retroactive access to benefits they were previously denied?

It depends on a number of circumstances. As a general matter, if a person is not prohibited by a deadline in the law from seeking benefits, he or she may file an application and seek certain back benefits. However, many benefits start to accrue only with an application, so the date of application will be the starting point. For claims reaching into the past, as with claims for overpaid taxes, there are specific time limits on when refund claims may be brought forward. The “After DOMA: What it Means For You” LGBT Organization Fact Sheet Series addresses many of these questions.

There are many financial benefits that married same-sex couples have missed out on because the federal government did not respect their marriage. But it is likely that the federal government will, in most instances, adopt a forward-looking approach, ensuring that married same-sex couples are respected as married from the day the Court’s ruling takes effect.

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Is all of DOMA now completely repealed?

No. The Windsor case challenged the constitutionality of Section 3 of DOMA, the part that discriminatorily excluded married same-sex couples from federal protections, responsibilities, and programs. Section 2 of DOMA, which says that states may discriminate against gay couples legally married in other states, still stands. Legislative action will be needed to remove it, although getting rid of Section 2 will not eliminate discriminatory state marriage laws.

The Respect for Marriage Act, a bill pending in Congress that enjoys bipartisan support and the backing of President Obama, would fully repeal all of DOMA. It would also ensure that all married couples — including same-sex couples — enjoy equal rights under federal law. It would not tell states what to do, but would ensure that the federal government treats all marriages with respect.

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What are the movement’s next steps on DOMA?

The undersigned LGBT organizations are working with others in the Respect for Marriage Coalition to ensure that the greatest number of federal protections, responsibilities, and programs are available to married couples as soon as possible. In some cases, this may require policy and regulatory changes within the agencies, some of which could take time. Further legislative action may also be needed, particularly to get rid of the rest of DOMA. To that end, we will continue to advocate for the Respect for Marriage Act in Congress.

We are committed to working until every single legally married same-sex couple receives the same protections, responsibilities, and programs as all other married couples – regardless of where they live – and to securing the freedom to marry nationwide.

Implementation of federal rights, benefits, and protections will vary from state to state and on an individual basis. We encourage you to consult a legal or tax professional to determine the best next steps you can take. This document is intended to provide an educational overview, not to serve as legal advice or a guide for making personal financial decisions.

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American Civil Liberties Union

Center for American Progress

Family Equality Council

Freedom to Marry

Gay & Lesbian Advocates & Defenders

Human Rights Campaign

Immigration Equality

Lambda Legal

National Center for Lesbian Rights

National Gay and Lesbian Taskforce

This series of fact sheets produced together by:

American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & Defenders | Human Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN.

Kit B (276)
Thursday June 27, 2013, 7:55 am

I read this in my email but when I heard Barney Frank speak directly and personally, about how this affected him and his husband, it came more real. We do take so much for granted, but without a right to marriage the couples block by state laws are actually being denied more than a right to marry. If DOMA was the device used in any state to block passage of marriage freedom, that argument is done, finished. Finally.

JL A (281)
Thursday June 27, 2013, 8:12 am
You cannot currently send a star to Kit because you have done so within the last day.

Sue H (7)
Thursday June 27, 2013, 9:05 am
Important information, thanks for this.

Terry V (30)
Thursday June 27, 2013, 10:26 am

Pro gay marriage montage

new anti-homophobia message from UN human rights office

JL A (281)
Thursday June 27, 2013, 11:21 am
Thanks Terry for posting the two very relevant links!

Angelika R (143)
Thursday June 27, 2013, 1:51 pm
Without doubt, along with the joy there is a huge mountain of bureaucracy to follow now, a bunch of new stuff to learn for all parties involved, so many changes in so many fields, - ALL of this could have been AVOIDED had you never even had this damn law!

Helen Porter (39)
Thursday June 27, 2013, 4:53 pm

John B (185)
Friday June 28, 2013, 4:16 am
Thanks JL for the excellent post. A very informative summation. More work still to do on a State by State basis and in getting ENDA passed. Read and noted.

JL A (281)
Friday June 28, 2013, 6:59 am
You are welcome John.You cannot currently send a star to John because you have done so within the last day.

Dawn Barler (5)
Friday June 28, 2013, 7:33 am
The individual states will be a problem. I personally think this is a constitutional right that should extend to every American Citizen regardless of what state they live in. Would a state refuse to marry a man and woman for no reason? Of course not. That means they have no reason to refuse same sex marriages except for religion. Religion has NO place in government Federal, state, or local. This should be a non-issue.

Birgit W (160)
Friday June 28, 2013, 4:13 pm

Esther Z (94)
Friday June 28, 2013, 10:26 pm
Noted. Thank you, J.l.A for posting this excellent article. The defeat of DOMA is going to bring a lot of confusion, to both the married couples and the officials who have the power to uphold the laws and regulations now available to same sex couples. It's all new territory, and of course, there'll be lots of missteps, both intentional and unintentional.
As a matter of fact, it kind of happened today, when the 9th U.S Courts of Appeals lifted the stayed on marriage in California. It was understood by almost all officials that the 9th court's stay would be effective for a minimum of 25 days or longer, and marriage in California wouldn't happened for at least 30 days or more. Well, our California Attorney General, Kamala Harris, bless her heart, made a formal request to the 9th U.S Court of Appeals to hurry up the process and lift the stay. Well, it took everyone by surprise when the 9th Court did just that, and with a simple notification to Ms. Harris, lifted the stay! Incredible! The courts never move that fast! As Ms. Harris stated during an interview at The Rachel Maddow Show, when asked why she made the formal request, she stated, "justice delay, is justice denied." To make a long story short, as news got around that Californians could marry today, the phones of City Halls across the state started ringing, and some officials were confused, and not sure if they had the power to issue marriage licenses. Ms. Kamala Harris even had to formally issue an order to the San Francisco County Clerk to start issuing the marriage licenses when there was a bit of hesitation on the part of the county official. So, you see, even in California there was much confusion; now imagine how it's going to be at the other 12 states that have their own rules and regulations, and still have very conservative officials presiding over very conservative counties. It won't be smooth sailing!
Anyhoo, if anyone is interested, just watch today's episode of The Rachel Maddow Show and you'll have a chance to see an interview with California Attorney General Kamala Harris, and the first televised, post DOMA, gay wedding from Los Angeles City Hall!

Sharon W. (4)
Saturday June 29, 2013, 4:40 pm
Well, about damn time!

Barbara Tomlinson (431)
Sunday June 30, 2013, 4:00 pm
Today, Sunday, one of the best and happiest Gay Pride Parades in Seattle History!

Surely in other States too -
a reminder that Voters in Washington State have just legalized Same-sex Marriage during the last Election, so many couples, families and their friends are cheering - and many just-married couples were in the Gay Pride Parade!
[Aztec Dancers were something ELSE, tho! feathers and sequins and masks...]

Phillipa W (199)
Sunday June 30, 2013, 9:09 pm
I for one am still surprised that this is even an issue in today's society. People love who they love, are attracted to who they're attracted to, and a relationship and love can't be defined by gender. Regulating which consenting adults can marry which consenting adults should not be done. In democracies, we scream to the world how proud of living in a democracy we are because it values individuals and limits the government's power to impose on our daily lives, and how citizens are free. Well it's just not so and there's no reason for this. Merely the bigotry of some. Bigotry should never, ever be mandatory by law.

paul m (93)
Monday July 1, 2013, 7:02 am


Melania Padilla (122)
Saturday July 6, 2013, 8:52 pm

JL A (281)
Saturday July 6, 2013, 8:54 pm
You are welcome Esther and Melania.
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