The fall of DOMA: federal benefits now available to same-sex marriage partners


Posted by AzBlueMeanie:

EqualAfter the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA) in June, ending the federal government's ability to discriminate against legally married same-sex marriage partners from states that recognize same-sex marriage, the Obama administration has had the agencies of the federal government conducting a review to amend rules and regulations to comply with the law.

Yesterday, the IRS and Medicare announced a policy which uses the “place of celebration” rule, rather than the place of residence of legally married same-sex marriage partners. This policy change will have a profound effect on undermining Section 2 of DOMA (states do not have to recognize the status of legally married same-sex marriage partners from states that recognize same-sex marriage — in violation of the Full Faith and Credit Clause, Article IV, Section 1, of the U.S. Constitution), because so many states use the federal adjusted gross income from Form 1040 as the basis for factoring state income taxes. The IRS and Medicare will now recognize same-sex marriages. All of them.:

According to a big new announcement
from the IRS and the Treasury Department, if you’re a legally married
gay couple, the federal government will recognize your marriage — even
if you live in a state where your marriage isn’t legal.

The statement, released by the Treasury Department Thursday, says that department and the IRS will use a “place of celebration” rule in recognizing same-sex unions (recognition that was illegal before the Supreme Court struck down part of the Defense of Marriage Act last month). That means that the U.S. government recognizes a marriage if the union was legally recognized in the place where it occurred, where it was celebrated. That’s true even if the married couple then lives in a state where gay marriage is illegal.

The press release lays this out very clearly: “The U.S. Department of
the Treasury and the Internal Revenue Service (IRS) today ruled that
same-sex couples, legally married in jurisdictions that recognize their
marriages, will be treated as married for federal tax purposes. The
ruling applies regardless of whether the couple lives in a jurisdiction
that recognizes same-sex marriage or a jurisdiction that does not
recognize same-sex marriage.”

* * *

What’s more, the rule is retroactive. As the press release puts it:
“Generally, the statute of limitations for filing a refund claim is
three years from the date the return was filed or two years from the
date the tax was paid, whichever is later. As a result, refund claims
can still be filed for tax years 2010, 2011, and 2012.”

* * *

The Department of Health and Human Services ruled Thursday that
legally wedded same-sex couples, wherever they live, are eligible for
certain Medicare benefits reserved for married couples. In its memo, HHS
“specifically clarifies that this guarantee of coverage applies equally
to couples who are in a legally recognized same-sex marriage, regardless of where they live.”

“Today, Medicare is ensuring that all beneficiaries will have equal
access to coverage in a nursing home where their spouse lives,
regardless of their sexual orientation,” Centers for Medicare &
Medicaid Services Administrator Marilyn Tavenner said in a statement.
“Prior to this, a beneficiary in a same-sex marriage enrolled in a
Medicare Advantage plan did not have equal access to such coverage and,
as a result, could have faced time away from his or her spouse or higher
costs because of the way that marriage was defined for this purpose.”

* * *

Social Security still uses a place of residence rule, and has issued instructions to
personnel to deny claims for spousal benefits from  same-sex couples
living in states where such marriages are not recognized. But the
overall trend is toward a federal government that offers benefits to as
expansive a set of same-sex married couples as possible.

In other developments, Judge: VA can't deny benefits to lesbian Army vet:

A judge in Los Angeles ruled Thursday that a lesbian Army veteran and
her spouse should be entitled to disability benefits given the recent
Supreme Court ruling that struck down part of the Defense of Marriage

U.S. District Judge Consuelo Marshall said that a federal
code defining a spouse as a person of the opposite sex is
unconstitutional "under rational basis scrutiny" since the high court's
decision allowing legally married gay couples the right to health care

"The court finds that the exclusion of spouses in
same-sex marriages from veterans' benefits is not rationally related to
the goal of gender equality," in the code, Marshall wrote in her
four-page ruling.

* * *

The law on VA benefits specifically defines spouse and surviving
spouse as someone of the opposite sex, which has prevented same-sex
married couples from accessing such benefits as enhanced disability or
pension payments.

In a letter to Sen. Jeanne Shaheen, D-N.H.
earlier this month, VA Secretary Eric Shinseki said no court had deemed
the provision unconstitutional, nor has Congress taken up a bill to
change the definition of spouse. He noted, however, that if spousal
definitions were determined to be unconstitutional, the agency would be
prepared to update its policies.

The Defense Department has said
that same-sex spouses of military members will be eligible for the same
health care, housing and other benefits enjoyed by opposite-sex spouses
starting Sept. 3.

There are several cases wending their way through the Courts of Appeal challenging Section 2 of DOMA, which will make it to the U.S. Supreme Court if not in the 2013 Term, then definitely in the 2014 Term. Justice Kennedy's opinion striking down Section 3 of DOMA clearly signaled that he is prepared to strike down Section 2 of DOMA when the appropriate case comes before the Court. It is only a matter of time.

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AZ BlueMeanie
The Blue Meanie is an Arizona citizen who wishes, for professional reasons, to remain anonymous when blogging about politics. Armed with a deep knowledge of the law, politics and public policy, as well as pen filled with all the colors stolen from Pepperland, the Blue Meanie’s mission is to pursue and prosecute the hypocrites, liars, and fools of politics and the media – which, in practical terms, is nearly all of them. Don’t even try to unmask him or he’ll seal you in a music-proof bubble and rendition you to Pepperland for a good face-stomping. Read blog posts by the infamous and prolific AZ Blue Meanie here.


  1. One big problem I have with the opinion is that it failed to cite Supreme Court rulings like Rostker v. Goldberg, Parker v. Levy, and Goldman v. Weinberger, which held that judicial deference to Congress is at its apogee when Congress legislates military policy. (In defending the since-repealed ban on women in combat billets, the Obama administration relied on those rulings in its arguments.)The court should have explained more clearly how these rulings apply to this case.

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