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DOJ Report Details Administration’s Broad Implementation of Windsor

Same-sex couples can now be buried together in national cemeteries; Couples in civil unions now eligible for many Social Security benefits; Further legislative action required to ensure LGBT married couples have access to maximum number of Social Security, Veterans benefits regardless of their state of residence

WASHINGTON – Today the Justice Department released a report detailing the Obama administration’s broad implementation of the Supreme Court’s United States v. Windsor decision, which struck down key components of the Defense of Marriage Act (DOMA) last year. The Court’s ruling allowed the federal government to recognize same-sex marriages for the purposes of crucial federal benefits and programs.  Today’s report also identifies that the Administration is unable to extend some Social Security and Veterans benefits to married same-sex couples living in states that do not recognize their marriages. The Justice Department has determined that statutory references to “state of domicile” or similar terms require Congress to pass legislation to amend the statues to provide for a “state of celebration” standard.

Also included in the report was an announcement that the VA Acting Secretary will allow for same-sex couples to be buried together in a national cemetery.  Furthermore, the Social Security Administration will begin extending survivor benefits, lump sum death benefits and aged spouse benefits to same-sex couples if one partner is eligible to inherit from the other partner under state law.  This would include couples with civil unions or domestic partnerships from states like Colorado, Nevada and Wisconsin. 

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 it's intent to extend family leave to all federal employees who are married to a same-sex spouse.  

“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 Social Security Administration and the Department of Veterans Affairs 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.

The following legislation has been introduced in the 113th Congress to address the challenges faced by legally married same-sex couples who have been unable to secure full federal recognition of their marriages due to their state of domicile: 

Respect for Marriage Act (RMA) (H.R. 2523; S. 1236) repeals DOMA in its entirety and ensures that every married couple has the certainty that every federal benefit and protection will flow from a marriage valid where it was performed, even if that couple moves or travels to another state. By repealing Section 2, the Respect for Marriage Act returns to traditional principles of Comity and Full Faith and Credit. The bill does not require states that have not yet enacted legal protections for same-sex couples to recognize a marriage. Nor does it obligate any person, state, locality or religious organization to celebrate or license a marriage between two persons of the same sex. This legislation only requires the federal government to equally apply its policy of looking to the states in determining what legal relationships are eligible for federal benefits.

RMA was introduced in the 113th Congress in the House of Representatives by Reps. Jerry Nadler (D-NY) and Ileana Ros-Lehtinen (R-FL) and in the Senate by Sen. Dianne Feinstein (D-CA) on June 26, 2013.  

Veteran Spouses Equal Treatment Act (VSETA) (H.R. 2529) provides the same family benefits to lawfully-married lesbian and gay service members and veterans as are already provided to service members and veterans with different-sex spouses, regardless of where they live. 

VSETA was reintroduced in the 113th Congress in the House of Representatives by Rep. Dina Titus (D-NV) on June 27, 2013. 

Military Spouses Equal Treatment Act (MSETA)/ Charlie Morgan MSETA (H.R. 683; S. 373) provides the same family benefits to lawfully-married lesbian and gay service members and veterans as are already provided to service members and veterans with different-sex spouses, regardless of where they live.

MSETA was reintroduced in the 113th Congress in the House of Representatives by Rep. Adam Smith (D-WA) and in the Senate by Sens. Jeanne Shaheen (D-NH) and Mark Udall (D-CO) on February 14, 2013. MSETA was approved by the Senate Veterans Affairs Committee on July 24, 2013, by a bipartisan voice vote. 

Protecting the Freedoms and Benefits for All Veterans Act (H.R.3569) provides the same family benefits to lawfully-married lesbian and gay service members and veterans as are already provided to service members and veterans with different-sex spouses, regardless of where they live.

The Protecting the Freedoms and Benefits for All Veterans Act was introduced in the 113th Congress in the House of Representatives by Reps. Tim Walz (D-MN), Ileana Ros-Lehtinen (R-FL) and Richard Hanna (R-NY) on Nov. 20, 2013.

Social Security and Marriage Equality Act (SAME Act)  (H.R. 4664; S. 2305) ensures that beneficiaries who were legally married to their same-sex spouse are able to access social security benefits regardless of where they live at the time they become eligible for benefits. 

The SAME Act was introduced in the 113th Congress in the Senate by Sens. Patty Murray (D-WA), Mark Udall (D-CO) and Tammy Baldwin (D-WI) on May 8, 2014, and in the House of Representatives by Reps. Ron Kind (D-WI), Ileana Ros-Lehtinen (R-FL), Elizabeth Esty (D-CT) and Allyson Schwartz (D-PA) on May 15, 2013.

The Human Rights Campaign is America’s largest civil rights organization working to achieve lesbian, gay, bisexual and transgender equality. By inspiring and engaging all Americans, HRC strives to end discrimination against LGBT citizens and realize a nation that achieves fundamental fairness and equality for all.

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