Life After DOMA Could Bring Legal Chaos
If you live in Maryland you’ll be in like Flynn. If you reside in Delaware there is hope for the near future. If you call Virginia home…well, forget it, lovers. The three states of Delmarva are a lesson in just how complicated life may become for gay/lesbian married couples if the Supreme Court this summer finds the Defense of Marriage Act (DOMA) unconstitutional, as many predict it will.
At first, gay people all over the country went into a state of near euphoria at the likely end of DOMA—and there is no question that it’s a lousy, discriminatory law and must go. But in their bubbly enthusiasm, few gay couples who reside in the 41 states that currently do not recognize same-sex marriage seemed to realize that a ruling against DOMA will do very little to benefit them—unless they pick up stakes and move to a marriage-equality state.
“What? Why?” asked many of my shocked Florida friends, some of whom already are legally wed in other states, when I suggested that we will have to flee the Sunshine State if we hope to partake of Social Security survivorship and hundreds of other federal benefits the demise of DOMA will make available to married gay couples.
The reason is quite simple, even though the results will be chaotic. Federal law looks to each state to determine an applicant’s qualifications for most government benefits. According to Gay & Lesbian Advocates & Defenders (GLAD), the legal requirements for Social Security spousal benefits are: “At the time of your application, your spouse, the wage earner on whose record benefits are being sought, must be domiciled in a State that recognizes your marriage to a spouse of the same sex or in Washington, D.C. or in any foreign country. Tempo-rary residence in one of these jurisdictions is not sufficient; neither a domestic partnership nor a civil union can serve as the basis for a Social Security spousal retirement benefit… You and your spouse must have been married for at least 12 months prior to your application for spousal benefits.”
Although John and I may travel to Maryland or New York to be wed, our marriage certificate would mean nothing when we return home to Florida where same-sex marriage is unconstitutional (a policy that cannot change without a 60 percent public referendum vote to overturn it). If John applied for Social Security as my spouse, Florida would advise Washington that we are not married in its eyes and do not qualify.
Without an accompanying national policy of marriage equality, a ridiculous result of DOMA’s elimination will be the creation of two classes of gay citizens—those who qualify for federal marriage benefits and those who don’t. When, for example, a gay man dies in Iowa, his male spouse could receive a Social Security death benefit. If I die in Florida, my male spouse could not.
Here’s where the situation would become even more ludicrous. If married Bethesda, Marylanders Paul and Perry were to move a short commute across the Potomac to Arlington, Virginia, and then apply for shared Social Security benefits, they no longer would qualify due to that state’s anti-gay marriage law. Or, if the couple first applied for benefits and then moved to Virginia, they would be granted benefits not available to other gay Virginians.
“But that’s not fair,” friends tell me. “Surely the Supreme Court will create an equal playing field.”
Although it is impossible to be certain about what the justices will do, in all probability they will not intercede to set a new policy on qualifications for marriage. During oral arguments on DOMA, Justice Anthony Kennedy (the likely swing vote) made it clear that one reason he believes the law is unconstitutional is because it interferes with the right of the various states to determine who qualifies for marriage within their boundaries. Kennedy does not want to change the long-standing system so that the feds may tell a state how old someone needs to be to get married or what kind of documentation is required. Include sexual orientation on that list of what is “up to the states to decide” about marriage. [Note: The high court did make an exception when it told states in 1967 they could no longer bar interracial marriage, so there is precedent to allow an intervention.]
Eliminating DOMA without a full-fledged commitment to marriage equality not only will create an administrative nightmare but legal havoc, says Noah Feldman, professor of constitutional and international law at Harvard. In an interview with Bloomberg News right after the Supreme Court’s hearing, Feldman said that while Justice Kennedy “might well prefer some gradual way to introduce gay marriage …the problem with this gradual strategy…is that it would create anomalies leading to a nightmarish barrage of new litigation. Instead of attenuating criticism of the court by avoiding a single ‘Eureka’ moment, the court would put itself, along with lower courts, at the center of hundreds more headlines for years to come.”
So, is there any hope of avoiding the nightmare? Sure, hope always springs eternal. The Supremes could realize what a mess it will be if the federal government must treat same-sex married couples substantially different based on their state of residency and the justices could come up with a national uniform standard. But they typically don’t see that as part of their job; they see it as the responsibility of Congress to work out the details. The justices also could make a blanket statement—in either the DOMA or California Proposition 8 case—that the Constitution forbids all laws—including state laws—that discriminate against gay people. Almost no Court watcher believes that is going to happen.
There is another way to work out the issue of federal benefits for gay married couples. It’s called the Respect for Marriage Act (RMA), and it is being introduced in Congress this year. In addition to repealing DOMA, the RMA would provide all couples, including same-sex couples, with “certainty” that federal benefits and protections flow from a valid marriage celebrated in a state where such marriages are legal, even if a couple moves or travels to another state. The odds of passage currently are not good, as many Republicans oppose it. However, once the Supreme Court rules on DOMA, even the opposition may have to concede that it is vital that federal benefits and taxation be handled equitably for all citizens. Supporting the bill would be an excellent way for GOP legislators to demonstrate they want to include LGBT people in their constituency.
Meanwhile, as John and I bite our nails hoping for a broader victory for marriage equality this June, we are beginning to consider our personal options.
On May 12, OUR LIFE PARTNERSHIP CELEBRATES 40 YEARS. That’s four decades without any recognition, without any tax rights or benefits, from our government. Both of us would like an opportunity to share in some of what may finally become available to committed gay couples, especially in terms of Social Security survivorship. And, for us, that could well mean packing up our household for one more major move—to a marriage friendly state.
Our discussions are centering on a possible return to California where we met and first lived together (because we are confident the Supremes will uphold same-sex marriage there) and on Washington, DC, where we spent a dozen great years despite the cold winters. But we’re also monitoring the news from Delaware: we loved living in Rehoboth Beach and it could be such a great spot for a permanent honeymoon....