Defining spousal benefits in a post-DOMA America

December 18, 2013

Although the U.S. Supreme Court struck down the Defense of Marriage Act (DOMA) in June, that didn't mean that same-sex marriage was suddenly the law in Florida or the rest of the other states that haven't passed marriage equality legislation. Nor did it make same-sex couples automatically eligible for marriage-based federal benefits.

But that doesn't mean that same-sex couples in Florida won't ultimately obtain such benefits, says Brian Moulton, Legal Director with the Human Rights Campaign. Moulton spoke Monday night at the Metro Wellness and Community Center in St. Petersburg, where he gave a quick summary of what federal agencies are doing in the aftermath of the ruling.

As Moulton explained, there is no rule across all agencies. Some look to the law of the state where a couple married regardless of the law of the state where the couple now lives (called "the place of celebration") while other look to the law of the state where the couple is living now ("the place of domicile"). He gave a breakdown of what various agencies are doing.

Veterans Administration: Moulton said the V.A has not yet announced how they will treat married couples who live in non-recognized states. "They have said if you're married in a marriage equality state, those veteran spouses have access to veteran spousal benefits, but we have not heard about spouses living in non-recognition states," he says.

Moulton optimistically believes that the V.A. is trying to figure a way around the statute that says they're only supposed to recognize the rights of a married couple based on where they were married.

Dept of Homeland Security : DHS would take the celebratory rule route, but it also means that immigration visa petitions filed on behalf of a same-sex spouse will now be reviewed in the same manner as those filed on behalf of an opposite-sex spouse.

Defense Dept: The Pentagon announced after DOMA was struck down that gay military personnel are entitled to the same spousal benefits as other members, meaning National Guard members can get their benefits processed and ID's issued at state facilities. However there were nine governors across the country who were resisting this call, including Florida's Rick Scott. However after Defense Secretary Chuck Hagel ordered that they comply, they all fell in line just last week.

IRS — The IRS has adopted the celebration rule.

Social Security - The same situation as the V.A., where benefits will be granted from where a couple has been married. "If you think you're eligible for benefits, you should apply for those benefits to make sure you preserve your claim for SS benefits. If you're married or surviving spouse is living in a marriage equality state you should apply for benefits," Moulton said, adding that no response has come about a spouse living in a non-recognition state (like Florida) "We think they can be creative and have wiggle room," Moulton said.

"We may have to go back to Congress," Moulton added regarding the V.A. and Social Security Agencies. "We are not letting those agencies alone. Those are two incredibly important programs. I would encourage you to do what the agencies said and to apply for benefits, and preserve the claim,"he said.

During a Q&A afterwards, one woman asked if any of the changes being made since DOMA fell could be rescinded by a Republican president in 2016? Moulton said it was highly unlikely. "There's nothing a future Republican President can do about that unless he tries to amend the constitution. The recognition of marriages is safe," he said adding that potentially marriage equality critics in Congress could go after some federal agencies.

Equality Florida's Nadine Smith also said that she doesn't see that as likely, as a new generation of Republicans appear to be supportive towards the idea of same-sex marriage.

Also speaking at the event was Democratic Congresswoman Kathy Castor, whose district dips into parts of St. Pete. She called it a banner year for the gay rights movement.

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