WHAT IT MEANS FOR YOUTHE SUPREME COURT RULING ON THE DEFENSE OF MARRIAGE ACT: WHAT IT MEANS
Tis series of fact sheets produced together by:
American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & DefendersHuman Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN.
Depending on your individual circumstances, the current patchwork o discriminatory laws may be fnancially detrimental to you or your partner and may create fnancial and legal complications or you and your amily.Beore making a decision, it is essential that you consult an attorney or individualized legal advice. Tis is particularly important or people who have or are applying or government benefts. Getting married may jeopardize your eligibility or certain public benefts without providing you the ull measure o protections other married couples enjoy. In addition, i you travel to another place to marry and then return to live in a state that does not respect your marriage, you may be unairly unable to obtain a divorce, which can lead to serious negative legal and fnancial consequences.Same-sex couples will continue to endure a mix o respect, discrimination,and uncertainty until we have secured the reedom to marry and ull respect nationwide. People must make careul decisions when and where to marry,even as we work together to end this injustice.
Te ollowing questions lay out what we know so ar.
What does this mean or legally married same-sex couplesliving in a state that respects their marriage?
Same-sex couples who are legally married and live in a state that respects theirmarriage should be eligible virtually right away or the same protections,responsibilities, and access to ederal programs aforded to all other marriedcouples. Te ederal government may take some additional time to changeorms, train staf, and otherwise prepare or this change. We expect urtherguidance rom the ederal government and will update this Q&A and the“Ater DOMA: What it Means For You” LGB Organization Fact SheetSeries accordingly.Tere are more than 1,100 places in ederal law where a protection orresponsibility is based on marital status. A ew key examples include accessto Social Security survivors’ benets; the option to use amily medical leaveto care or a spouse; the opportunity to sponsor a oreign-born spouse orcitizenship; and access to veterans’ spousal benets.
What about legally married same-sex couples living in a statethat does not respect their marriages?
Legally married same-sex couples living in a state that does not respect theirmarriages may right away have access to
ederal rights and benets,but not to many others, at least not immediately. Federal agencies havediferent approaches regarding which state’s laws they look to in order todetermine i a marriage is valid or ederal purposes. Some, including theIRS and Social Security, have looked to the laws o the state where a couplelives (
place of domicile/residence
). Others, including immigration agencies,look to where a couple got married (
place of celebration
). Other ederalagencies and programs look to the state “with the most signicant interest”in the marriage, and many have no explicit rule at all.Some ederal programs, including immigration, already use a “place o celebration” standard. Tis standard best provides certainty, clarity, andstability or couples, their loved ones, employers, government agencies, andothers, especially in a society where people regularly move or jobs, amily,and many other purposes. Such a standard would simply acknowledge thata couple is married or ederal purposes regardless o 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 standardairest to all married couples: the “place o celebration” standard. Someagencies can use this time-honored legal standard just by changing theirpractices. Others may have to change regulations, requiring a more lengthy process o proposing new rules and soliciting public comments, or laws.Because the Supreme Court’s decision does not require states to recognizethe marriage o same-sex couples and does not guarantee that marriedcouples who live in states with marriage bans will receive all o the ederalbenets based on marriage, couples who live in these states should proceed with caution beore deciding to marry. Depending on your individualcircumstances, getting married may be nancially or legally detrimental,especially i you are receiving certain government benets. Couples shouldseek out individualized legal advice rom a knowledgeable attorney beoretraveling to another place to marry.
Will legally married same-sex couples receive retroactiveaccess to benefts they were previously denied?
It depends on a number o circumstances. As a general matter, i a personis not prohibited by a deadline in the law rom seeking benets, he or shemay le an application and seek certain back benets. However, many benets start to accrue only with an application, so the date o application will be the starting point. For claims reaching into the past, as with claimsor overpaid taxes, there are specic time limits on when reund claims may be brought orward. Te “Ater DOMA: What it Means For You” LGBOrganization Fact Sheet Series addresses many o these questions.Tere are many nancial benets that married same-sex couples have missedout on because the ederal government did not respect their marriage. Butit is likely that the ederal government will, in most instances, adopt a orward-looking approach, ensuring that married same-sex couples arerespected as married rom the day the Court’s ruling takes efect.
Is all o DOMA now completely repealed?
case challenged the constitutionality o Section 3o DOMA, the part that discriminatorily excluded married same-sex couples rom ederal protections, responsibilities, and programs. Section2 o DOMA, which says that states may discriminate against gay coupleslegally married in other states, still stands. Legislative action will beneeded to remove it, although getting rid o Section 2 will not eliminatediscriminatory state marriage laws.Te Respect or Marriage Act, a bill pending in Congress that enjoysbipartisan support and the backing o President Obama, would ully repealall o DOMA. It would also ensure that all married couples — including same-sex couples — enjoy equal rights under ederal law. It would not tellstates what to do, but would ensure that the ederal government treats allmarriages with respect.
What are the movement’s next steps on DOMA?
Te undersigned LGB organizations are working with others in theRespect or Marriage Coalition to ensure that the greatest number o ederal protections, responsibilities, and programs are available to marriedcouples as soon as possible. In some cases, this may require policy andregulatory changes within the agencies, some o which could take time.Further legislative action may also be needed, particularly to get rid o therest o DOMA. o that end, we will continue to advocate or the Respector Marriage Act in Congress. We are committed to working until every single legally married same-sex couple receives the same protections, responsibilities, and programs as allother married couples – regardless o where they live – and to securing thereedom to marry nationwide.