What happens next, now that Supreme Court has struck down DOMA?
This article first appeared in the St. Louis Beacon, June 28, 2013: Now that the U.S. Supreme Court has struck down the Defense of Marriage Act, the big question is: What happens next?
For married couples in states that recognized same-sex marriage, the Supreme Court's decision means access to well over a thousand federal benefits. That includes, but isn’t limited to, filing joint income tax returns, receiving Social Security benefits and military spousal benefits.
But the impact is murkier in states like Missouri, which has a constitutional amendment banning gay marriage. The impact in Illinois, a state that allows for civil unions but doesn’t allow for same sex marriage, is also unclear.
PROMO Missouri executive director A.J. Bockelman told the Beacon that he expects some of the uncertainty to be cleared up in the months ahead.
"All of this is going to have to be clarified," Bockelman said. "There’s going to have to be guidance from all these different agencies on how everything applies to same-sex couples. And I think it’s going to evolve."
With assistance from Bockelman and a fact sheet created by a variety of gay rights organizations, the Beacon put together some question and answers about what DOMA’s partial demise means for same-sex couples. We'll update this Q&A if any of the uncertainty is lifted in the weeks and months ahead.
Q: What did the Supreme Court decide in United States vs. Windsor?
A: The court said on Wednesday that Congress passed the Defense of Marriage Act, or DOMA, with an unconstitutional “animus” toward same-sex marriages based. The law, according to the court’s 5-4 majority, “demeans” same-sex couples, makes same-sex marriage “unequal” and “humiliates tens of thousands of children” living in same-sex families.
“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.”
“Marriage recovers roughly 1,100-plus benefits,” Bockelman said. “So when you go to the courthouse, you pay your $50 and do your blood test… and you have the justice of the peace perform the ceremony, there are 1,100-plus laws that benefit you.”
Q: What is Missouri’s status when it comes to same-sex marriage?
A: Missouri voters approved a constitutional amendment in 2004 that banned same-sex marriage. Barring a court order, the only way to get rid of that measure would be another statewide vote.
Q: What is Illinois’ status when it comes to same-sex marriage?
A: Illinois allows for civil unions, which provides access to state-based benefits. But the state doesn’t allow for gay marriage. Earlier this year, legislation to legalize gay marriage passed in the Illinois Senate but not the Illinois House.
Q: Are people in civil unions automatically eligible for federal benefits?
A: No, Bockelman said. “A couple who has a civil union in Illinois would not be able to draw down federal benefits because there is no provision under the federal government for, say, the IRS or Social Security administration that recognize civil unions,” he said.
Equality Illinois, a group that supports legalizing same sex marriage, said in a statement obtained by the Capitol Fax blog: “For anyone who doubts that civil unions in Illinois created an unacceptable second-class status, the court’s ruling is a powerful message that the state House urgently needs to join the Senate and pass the freedom to marry.”
Q: Did the Windsor decision strike down all of DOMA?
A: No. The decision kept in place Section 2 of the law, which essentially says that states that have same-sex marriage bans don’t have to recognize same-sex marriages from other states.
“And so, what it leaves us with is a quandary for a state like Missouri where Section 2 applies,” Bockelman said. “Somebody married in Iowa doesn’t have the relationship recognized in Missouri. And the real interesting piece going forward is what will apply to those couples here in Missouri. And that’s a wildcard here.”
Q: If a same-sex couple gets married in, say, Iowa and moves back to Missouri, are they entitled to any federal benefits?
A: That big question, Bockelman said, depends on how the federal regulations are worded.
Some federal benefits have based marital status on where somebody lives, known as “place of domicile/residence.” But other benefits look for where a couple got married, which is known as “place of celebration.”
Susan Appleton, an expert on family law at Washington University Law School, told the Beacon in an earlier story that "Congress could expand the number of gay couples entitled to federal benefits by making federal statutes refer to the place of celebration, thus encouraging couples in restrictive states to travel to permissive states to marry."
Bockelman said that federal agencies may also make that change from “place of domicile/residence” to “place of celebration.” Some of those changes may occur quickly. Other agencies, according to the fact, may have to go through a regulatory “process of proposing new rules and soliciting public comments, or laws.”
Q: What are some income tax benefits that could potentially apply now?
A same-sex couple that is, for instance, married in Iowa and lives in Iowa could now take a standard deduction as a married couple of $12,000, as opposed to a $6,100 standard deduction for filing jointly. They could also pool income and expenses in computing deductions or credits.
“They will enjoy all of the same tax benefits as a heterosexual couple that’s married in Iowa,” said Bockelman, referring to a couple married in Iowa and living in Iowa. “There will be no difference for them.”
As of now, Bockelman said, the IRS has a “place of domicile” rule for couples that live in a state that doesn’t recognize same-sex marriage, but got married in a state that recognizes it. It’s possible, he said, that the IRS might change that regulation internally. Nicole M. Pearl, a partner at McDermott Will & Emery LLP., told Bloomberg BNA that "the IRS could issue Treasury regulations that say as long as you are validly married in one state, the federal government will recognize it no matter where you live afterward."
“While it’s new to you and me, it’s been anticipated by many people that this would fall,” Bockelman said. “I believe that there are people within these different agencies that will move swiftly to announce what those changes are.”
Q: Will the decision stop couples from having to pay income taxes on the value of employer-provided insurance to an employee’s spouse?
A: Yes. Before Section 3 of DOMA was struck down, the value of employer-provided health insurance benefits for a same-sex spouse was taxable income to the employee. After the decision, Bockelman said, that’s no longer the case.
“If my partner and I receive domestic partner benefits from his company, let’s say it costs $500 extra a month to cover me,” Bockelman said. “For a straight married couple in the state, there’s no additional liability; it’s just seen as a corporate benefit. For my partner and me, though, on his paycheck – that additional $6,000 a year that they’re paying out in health insurance – it’s treated as income and you have to pay taxes on it.”
Whether this applies to Missourians who were married in a state that allows for same-sex marriage will depend if the IRS changes its regulations.
“It’s a federal guideline,” Bockelman said. “The federal tax rate would be the same throughout the country, it doesn’t necessarily vary by state. It’s not subject to state law. So potentially, same-sex couples could be covered under domestic partner insurance and not have to pay any additional cost."
Q: Will a same-sex spouse be able to inherit the estate of their same-sex spouse without penalty?
A: The challenge to DOMA was initiated by Edith Windsor, who married her long-time partner in Canada and they lived in New York, which recognized same-sex marriages. Windsor had to pay a $363,000 inheritance tax when her partner died. That would not have applied to a heterosexual because a spousal exemption would have wiped out the tax debt. DOMA barred Windsor from claiming that exemption.
Because of the decision, Windsor will be able to claim the spousal exemption and not have to pay the estate tax. Whether this will apply to Missourians will depend on whether the IRS changes its guidelines.
Q: How will the Windsor decision impact federal employees?
A: Buzzfeed reported on Friday that the Office of Personnel Management that the agency would extend benefits to same-sex spouses. The website reported the OPM acting director Elaine Kaplan sent out a memo stating that the agency “will now be able to extend benefits to federal employees and annuitants who have legally married a spouse of the same sex.” The decision, according to the site, covers current employees and retirees.
That could include health insurance, life insurance, dental and vision insurance, long-term care insurance, retirement programs and flexible spending accounts.
The memo stated that the changes to “all legally married same-sex spouses.” A spokesman told Buzzfeed that would include couples who legally married in one state (like Iowa) but live in a state that doesn’t recognize same-sex marriage (like Missouri).
Q: Would spouses of enlisted military personnel be entitled to benefits?
A: Defense Secretary Chuck Hagel said in a statement that the Department of Defense “intends to make the same benefits available to all military spouses -- regardless of sexual orientation -- as soon as possible.”
Bockelman noted that military bases are subject to federal and military law – not necessarily local laws. “So the benefits that would be extended to those individuals would be the same as any other spouse,” he said.
One wildcard, Bockelman said, is whether the benefits will apply only to people currently serving in the military or whether it will apply to veterans as well.
Q: How will the Windsor decision affect immigration issues?
A: According to the fact sheet, the U.S. Citizenship and Immigration Services focuses on "place of celebration"-- residence. This could make it much easier for same-sex couples married in a state like Iowa and living in Missouri to resolve immigration issues.
"So for example, yesterday, there’s a situation out of – I want to say it’s New York City – where the judge literally held the court decision until the announcement of DOMA and dismissed the case," Bockelman said. "It was a binational couple who had been married in New York state and they were trying to deport the partner."
Q: If a married same-sex couple lives in Missouri, can they receive Social Security benefits?
A: Under existing law, according to the fact sheet, Social Security statutes use the wage earner’s “place of domicile” as the relevant state law for assessing who is a spouse for benefits purposes. That means a same-sex couple that was married and living in Iowa would be able to receive Social Security benefits. But a same-sex couple married in Iowa and living in Missouri couldn't. An act of Congress would be required for that to be changed, according to the fact sheet.
Forbes Magazine detailed further how the decision could be beneficial for couples who live in states where same-sex marriage is recognized.
Q: What are the anti-discrimination laws in Missouri and Illinois?
A: Bockelman said that Illinois’ anti-discrimination statutes contain protections for sexual orientation and gender identity. That means people can seek restitution if they are fired from a job, discriminated in housing or denied public accommodation.
Missouri, however, does not include sexual orientation and gender identity in their anti-discrimination statutes. After the Supreme Court's decision came down, Gov. Jay Nixon told reporters that he hoped that the Missouri General Assembly would act on that issue next year.
Beacon contributor William Freivogel provided information for this article.