Government officials are, in many cases, overinterpreting last summer’s Supreme
Court decision on same sex “marriage.” Section 3 of the Defense of Marriage Act
stipulated that same sex “married” couples would be seen as married only in the
states where gay marriage was legal and not for the purposes of federal taxes or
benefits. The Supreme Court struck down that provision of the law. Justice Anthony
Kennedy, who wrote the opinion, was careful to say that the decision applied only
to “lawful marriages” performed in states that already recognize same-sex unions. It
was to have no immediate effect on the 36 other states whose laws forbid same-sex
marriages.
But it’s not exactly working out that way. Agencies are using varying yardsticks to
define which benefits apply to whom:
Some federal agencies are using a “Place of Celebration” standard, treating
legally “married” same-sex couples the same as heterosexual spouses, regardless of
what state they reside in.
So, same-sex “married” couples, even those currently living in the 36 states that do
not recognize same-sex “marriage,” must now file joint federal tax returns. These
couples will also be able to file amended returns for certain prior tax years, meaning
that many of them will be eligible for refunds.
Federal employee retirement and other spousal benefits will accrue to same-sex
“spouses” — again, no matter where they live as long as they have a legal same sex
“marriage.”
Medicare benefits will extend to same sex “spouses” and will also be based upon
where a same-sex couple was “married,” not where they currently live.
Other benefits are granted according to a “Place of Residence” standard. These
benefit programs will only grant spousal benefits to same-sex couples living in the
14 states, and the District of Columbia, where same-sex “marriage” is legal. This
standard is being used for Social Security, and Veterans’ Administration same-sex
spousal benefits.
The decision to strike down section 3 of DOMA is eroding certain protections for
marriage that still exist in most states. Marriage laws passed by the people are being
challenged. Eight years ago, 76 percent of Texas voters passed an amendment to
their state constitution protecting natural marriage. Now two same sex couples are
suing in federal court to overturn that constitutional amendment. Missouri has a
constitutional amendment protecting marriage. But Governor Jay Nixon now says
same-sex “married couples can file joint state tax returns.
Governors in eight states that recognize only traditional marriage, are at odds with
the federal government in refusing to provide same-sex spousal benefits in their
National Guard programs. Defense Secretary Chuck Hagel ordered them to do so and
most have had to thread the needle by using federal, not state, employees to process
these applications and to do so at federal, not state, installations.
When the High Court struck down section 3 of DOMA, the opinion specified that
states’ rights would be protected. Too often, they’re being diminished.