Demise of DOMA: Implementing Federal Benefits for Same-Sex Spouses
On June 26, 2013, the Supreme Court of the United States found a key provision of the Defense of Marriage Act (DOMA) unconstitutional. See U.S. v. Windsor, Executor of the Estate of Spyer, et al (No. 12–307). In its ruling, the Court stated that Section Three of DOMA is a “deprivation of the equal liberty of persons that is protected by the Fifth Amendment of the U.S Constitution.” The Court went on to note that:
DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State. It also forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.
The Windsor case is of particular significance to same-sex married people who seek the benefits of federal laws that apply to legally married persons, their spouses, dependents and heirs. Thus the Windsor decision pertains to Medicare. Eligible people in same-sex marriages can now apply for Medicare through their local Social Security Office or online at: http://www.socialsecurity.gov. The Social Security Administration’s website contains a short message from the Acting Social Security Commissioner in which she encourages potential same-sex claimants to file an application if they think they are eligible.
Unresolved questions include the treatment of partner benefits that are not based on marriage. Additional problems relate to persons who have a legal same-sex marriage in one state and move to a state that does not recognize same-sex marriage. For a discussion of these “full faith and credit” issues, see: http://www.lambdalegal.org/sites/default/files/publications/downloads/fs_legal-recognition-same-sex%20couples.pdf; and see “Full Faith and Credit: A Commentary by Prof. Lea Brilmayer,” http://www.law.yale.edu/news/4174.htm; and see also, Full Faith and Credit: http://www.huffingtonpost.com/tobias-barrington-wolff/doma-repeal-and-the-truth_b_905484.html.
Many advocates and coalitions are working with federal agencies on the implementation of policy and procedures to reflect the new federal recognition of same-sex marriages and marital benefits. Services and Advocacy for GLBT Elders (SAGE -, See http://sageusa.org), is one of several groups organizing meetings with federal officials in the development of policy and procedures for assuring the rights of same-sex married persons. SAGE recommends that advocates:
- Encourage people to apply at the Social Security office or online if they think they may be eligible for spousal or partner benefits. Persons should apply for benefits as early as possible. Similarly, those who have experienced a denial of benefits should follow the appropriate appeals process. http://www.socialsecurity.gov/pressoffice/pr/doma-pr.html.
- Educate constituents about their right to file an application for benefits with their local Social Security office or online; that Social Security office staff must take applications from all who seek to file; and that Social Security offices must accept a potential claimant’s appeal of a denial of benefits.
- Work with lesbian, gay, bisexual and transgender (LGBT) groups at the local, state, and national levels to develop educational materials and programs about spousal and partner benefits.
Fact Sheets and other Informational Materials
- Review the materials and resources available through the National Senior Citizens Law Center, www.nsclc.org, National Organization of Social Security Claimants Representatives, http://nosscr.org/search/node/DOMA, Center for Medicare Advocacy. www.medicareadvocacy.org (information on Medicare eligibility)
- The Supreme Court Ruling on the Defense of Marriage Act: What it Means: http://www.lambdalegal.org/publications/after-doma-summary
- The U.S. Office of Personnel Management: http://www.opm.gov/ (important fact sheets)
Articles and Blogs
- SSA: http://www.washingtonpost.com/blogs/federal-eye/wp/2013/08/12/ssa-now-processing-same-sex-marriage-benefit-claims/.
- DOL: http://thehill.com/blogs/regwatch/administration/316647-labor-department-updates-guidelines-to-extend-benefits-to-same-sex-spouses; http://www.washingtonblade.com/2013/08/07/dol-to-spell-out-gay-couples-eligible-for-family-and-medical-leave/. .
- DOD: http://www.ktvn.com/story/23135412/dept-of-defense-announces-same-sex-spouse-benefits.
- VA: http://www.govexec.com/pay-benefits/pay-benefits-watch/2013/07/veterans-same-sex-spouses-still-waiting-benefits/66878/?oref=voices-top.
- IRS: http://www.npr.org/blogs/health/2013/08/13/211633947/same-sex-couples-seeking-insurance-wait-for-irs-rules.
The Supreme Court’s DOMA decision should open doors to federal benefits for many people in same-sex marriages. Nonetheless, implementation may present challenges. The Center for Medicare Advocacy is available to help if problems arise regarding access to Medicare.
 See http://www.law.cornell.edu/supremecourt/text/12-307.