OVERINTERPRETING THE MARRIAGE DECISION by Penna Dexter

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.

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