Every day since the Supreme Court issued its landmark ruling striking down DOMA, we’re faced with more questions about how the decision will impact same-sex couples across the nation.
For state groups who are on the front lines of marriage equality fights, we know the process of finding answers can be frustrating, and we understand the urgency around educating your supporters.
That’s why we’ve pulled together some answers to frequently asked questions. While some questions simply do not yet have clear or definite answers, we’ve done our best to compile and gather information that we hope will be helpful. Feel free (and encouraged) to share all or parts of these FAQs with your supporters.
What was the state of marriage equality prior to the Court’s decisions?
Before the Justices ruled, 12 states plus Washington, DC had extended the freedom to marry to same-sex couples. But those couples were not recognized under federal law. While legally married same-sex couples were granted state-level protections, they were denied federal level protections because of Section 3 of DOMA.
Also, before the Court ruled, 32 states banned marriage for same-sex couples — 29 of which through constitutional amendments.
On the same day the Court struck down DOMA, they also let stand the landmark Federal District Court ruling striking down Proposition 8. With the end of Prop8, marriage for same-sex couples was restored in California — making the Golden State the 13th state to allow all committed couples to share in the freedom to marry.
How does the Court’s striking down of DOMA impact the state of marriage equality?
The Court struck down Section 3 of DOMA, the part of the law that dealt with federal recognition of legally married same-sex couples. Because of Section 3, the government was unable to recognize the legal marriages performed in marriage equality states. Now that Section 3 has been declared unconstitutional, the federal government can provide equal protection under the law to legally married same-sex couples.
The Supreme Court did not strike down the other two sections of DOMA. Thus, states can still decide on their own whether or not to extend the freedom to marry to same-sex couples. States that do not currently have marriage equality can still refuse to recognize marriages performed in a marriage equality state.
How does the ruling impact same-sex couples living in a state that currently bans marriage?
DOMA was an official federal policy disapproving of gay people and same-sex relationships. Although the striking down of DOMA doesn’t immediately impact all couples across the nation, it sends a powerful message about the value of our families.
The Court’s ruling applies only to the federal government. It does not change discriminatory state laws excluding same-sex couples from marriage. In states with marriage bans, couples will not be able to apply for a marriage license. This reality underscores that our work is not done. We must continue fighting to secure the freedom to marry in all fifty states across the country.
How does the ruling impact legally married same-sex couples (i.e., couples that were married in a marriage equality state) who are currently living in states where marriage in banned?
Although this is incredibly frustrating for many of our members, we have to just come out and say it: this is the area of greatest ambiguity, and we don’t yet have definite answers.
But here’s what we do know:
Legally married same-sex couples living in a state that does not respect their marriages may right away have access to some federal rights and benefits, but not to many others, at least not immediately.
Federal agencies have different approaches regarding which state’s laws they look to in order to determine if a marriage is valid for federal purposes. Some, including the IRS and Social Security, have looked to the laws of the state where a couple lives (place of domicile/residence). Others, including immigration agencies, look to where a couple got married (place of celebration). Other federal agencies and programs look to the state “with the most significant interest” in the marriage, and many have no explicit rule at all.
Some federal programs, including immigration, already use a “place of celebration” standard. This standard best provides certainty, clarity, and stability for couples, their loved ones, employers, government agencies, and others, especially in a society where people regularly move for jobs, family, and many other purposes. Such a standard would simply acknowledge that a couple is married for federal purposes regardless of where the couple lives; it wouldn’t tell a state how it must treat married same-sex couples.
For many programs, the administration can take steps to adopt the standard fairest to all married couples: the “place of celebration” standard. Some agencies can use this time-honored legal standard just by changing their practices. Others may have to change regulations, requiring a more lengthy process of proposing new rules and soliciting public comments, or laws. As soon as we know what standard is being applied to various programs, we will let you know.
Because the Supreme Court’s decision does not require states to recognize the marriage of same-sex couples and does not guarantee that married couples who live in states with marriage bans will receive all of the federal benefits based on marriage, couples who live in these states should proceed with caution before deciding to marry. Depending on your individual circumstances, getting married may be financially or legally detrimental, especially if you are receiving certain government benefits. Couples should seek out individualized legal advice from a knowledgeable attorney before traveling to another place to marry.
How does the ruling impact same-sex couples living in a marriage equality state?
DOMA imposed a second-class status on lawful marriages by negating them for all federal purposes. The Court has now affirmed that equal protection guarantees apply to the relationships of LGBT people and has replaced federal disrespect with federal respect for our lawful marriages.
Same-sex couples who are legally married and live in a state that respects their marriage should be eligible virtually right away for the same protections, responsibilities, and access to federal programs affored to all other married couples. The federal government may take some additional time to change forms, train staff, and otherwise prepare for this change.
There are more than 1,100 places in federal law where a protection or responsibility is based on marital status. A few key examples include access to Social Security survivors’ benefits; the option to use family medical leave to care for a spouse; the opportunity to sponsor a foreign-born spouse for citizenship; and access to veterans’ spousal benefits. The Department of Justice (DOJ) is currently working on rolling out these changes, and we will update you as new information is available.
For more information on how the DOMA decision will impact legally married same-sex couples, download the following fact sheets:
- Benefits and Protections for Civilian Federal Employees and Their Spouses
- Family and Medical Leave Act for Non-Federal Employees
- Federal Taxes
- The Free Application for Federal Student Aid (FAFSA)
- Medicare Spousal Protections
- Military Spousal Benefits
- Private Employment Issues and Benefits
- Social Security Spousal and Family Protections
- Supplemental Security Income for Aged, Blind, and Disabled (SSI)
- Temporary Assistance for Needy Families (TANF)
- Veterans’ Spousal Benefits
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