The Windsor Decision Creates Myriad of Questions
While the plaintiff in the Defense of Marriage Act case, Edith Windsor, will get back $363,000 in federal estate taxes plus interest, the future is murky for the estimated 114,000 legally married same-sex couples living in the United States. That’s because a state line still decides who is married and who is not.
While the high court’s decision is a victory for gay rights, it creates a predicament for the Obama administration around how to extend federal rights and benefits to same-sex couples when states, not the federal government, dictate who is married. Federal law and policy will need an overhaul to accommodate the court’s decision when it comes to social security and veterans benefits and filing income taxes.
No matter where they were married, would-be recipients of Social Security survivors’ benefits could run into trouble depending on the state where they reside. Eligibility for survivors’ benefits depends on where the potential recipient lives at the time he or she applies. So unless the Obama administration can effect a change in how Social Security benefits are administered, some same-sex couples will be left without spousal benefits.
The same could be true of veterans’ surviving spouses. Veterans’ benefit determinations are made based on the law of the state where the couple lived either at the time of the marriage or when the right to the benefit accrued.
The Democrat-controlled Senate is expected to consider legislation introduced by Dianne Feinstein of California to ensure same-sex couples are not excluded from federal benefits even if they live in states where their marriages are not recognized. But without the Republican-led House’s approval, any such measure could not become law.
Taxes are another big concern. The Internal Revenue Service will determine whether same sex couples may file jointly and claim the marriage deduction long offered to heterosexual couples. But no matter what the agency decides, same sex couples must still file separately in states that do not recognize their marriage.
The U.S. military now recognizes gay marriage, affording same sex couples a variety of benefits that would go to any married couple, like health care and a housing allowance. However, when these couples leave the military, their marriage license currently means nothing in states where same-sex couples cannot marry.
Even if federal benefits are addressed, some level of disparate treatment under the law will remain unless one of two things happen: either the 37 states that do not permit same-sex marriage reverse course or the Supreme Court revisits the question in a broader case and issues a ruling that establishes a constitutional right to marriage.
Eliminating the inequities that exist between states is the next challenge for gay rights advocates while conservative groups vow to push harder to limit the Windsor ruling. In the meantime, same-sex couples have long made decisions about where to live, work and raise children based on the legal climate, which could have a significant effect on the business recruitment of a same-sex spouse. While last week’s Supreme Court decision carries significant change, it did not change that.