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After DOMA: General Information on Life After DOMA

After DOMA: General Information on Life After DOMA

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Ending DOMA lifts up all LGBT people, even if it does not end our work. DOMA was an official federal policy disapproving of gay people and same-sex relationships, often imitated by states and private actors, and imposed a second-class status on our 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. This victory will energize our work moving forward so that we can achieve a reality in which every single same-sex couple enjoys full and equal protections under the law, regardless of where they live.
Ending DOMA lifts up all LGBT people, even if it does not end our work. DOMA was an official federal policy disapproving of gay people and same-sex relationships, often imitated by states and private actors, and imposed a second-class status on our 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. This victory will energize our work moving forward so that we can achieve a reality in which every single same-sex couple enjoys full and equal protections under the law, regardless of where they live.

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Published by: Immigration Equality on Jun 27, 2013
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02/06/2014

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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.
THE SUPREME COURT RULING ONTHE DEFENSE OF MARRIAGE ACT:
WHAT IT MEANS
Te Supreme Court’s historic ruling striking down Section 3 o the discriminatory Deense o Marriage Act (DOMA) is an enormous victory or loving, married couples andtheir amilies, and arms that they deserve equal treatment under the law. Tis victory demonstrates the importance o access to marriage, and gives married same-sex couplesaccess to the tangible benets o the ederal saety net, allowing them to better protect oneanother and their children.Edie Windsor demonstrated tremendous courage in standing up and speaking out or her44-year relationship and marriage when she was treated unjustly, and her actions havedirectly improved the lives o all same-sex couples.Ending DOMA lits up all LGB people, even i it does not end our work. DOMA was anocial ederal policy disapproving o gay people and same-sex relationships, oten imitatedby states and private actors, and imposed a second-class status on our lawul marriages by negating them or all ederal purposes. Te Court has now armed that equal protectionguarantees apply to the relationships o LGB people and has replaced ederal disrespect with ederal
respect 
or our lawul marriages. Tis victory will energize our work moving orward so that we can achieve a reality in which every single same-sex couple enjoys ulland equal protections under the law, regardless o where they live.Tis historic decision takes efect in 25 days. For legally married couples living outside o marriage state or the District o Columbia, there are still many questions about when they  will be equally able to share in ederal protections, responsibilities, and programs. Tisis because the ederal government typically deers to the states in determining whether a couple’s marriage is valid. Tere is no one rule across all ederal agencies. Some agencieslook to the law o the state where a couple married regardless o the law o the state wherethe couple now lives, while others look to the law o the state where the couple is living now. We think the ederal government can and should take action, where necessary, to ensurethat married couples in all states have access to the largest number o ederal programs.Te ederal government is already looking at how ederal agencies can ensure air and equaltreatment o all married couples where possible. However, at this time, there are a numbero important ederal benets that depend on whether your marriage is recognized whereyou live, so couples who live in states with bans on marriage by same-sex couples shouldproceed with caution beore making the decision to marry.
CAUTION:
I you live in a state that discriminates against married same-sex couples, you should be aware that the Supreme Court decision striking down part o the ederal so-called Deense o Marriage Act does NO mean that your state must respect your marriage or that  you will be eligible or all marriage-based ederal benefts. Further work is still required to end marriage discrimination nationwide and to secure both state and ederal equal treatment or all marriages.
Keep in Mind:
•
Te Supreme Court’s ruling in
Windsor 
applies only to the ederalgovernment. It does not change discriminatory state laws excluding same-sex couples rom state-conerred marriage rights.
•
Te ruling striking down DOMA will not be efective until 25 daysrom the decision. Even when efective, ederal agencies—largebureaucracies—may need and take some time to change orms,implement procedures, train personnel, and eciently incorporatesame-sex couples into the spousal-based system.
•
Until same-sex couples can marry in every state in the nation, there will be uncertainty about the extent to which same-sex spouses willreceive ederal marital-based protections nationwide. For ederalprograms that assess marital status based on the law o a state thatdoes not respect marriages o same-sex couples, those state laws will likely pose obstacles or legally married couples and surviving spouses in accessing ederal protections and responsibilities.
•
Securing air access to ederal protections that come with marriageor all same-sex couples in the nation will take some time and work.In some situations, it may require Congressional action or ormalrule-making by agencies.
•
Beore making a decision, it is essential that you consult an attorney or individualized legal advice. Tis is particularly important orpeople who are on certain public benets, as getting married may  jeopardize your eligibility without providing you the ull measureo protections other married couples enjoy. In addition, couples who travel to another place to marry and then return to live in a state that does not respect their marriage may be unairly unableto obtain a divorce, which can lead to serious negative legal andnancial consequences. People must make careul decisions whenand where to marry, even as we work together to end this injustice.
•
 We are committed to winning universal access to ederal maritalprotections or married same-sex couples through ongoing publicpolicy advocacy, and, where necessary, strategic litigation. Contactour organizations i you have questions, or updates and to learnmore about what you can do to achieve ull equality or those whoare LGB.Tis Guidance is intended to provide general inormation regarding major areas o ederal marriage-based rights and protections based onhow the various ederal agencies have administered ederal benets.
It should not be construed as legal advice or a legal opinion on any specifc acts or circumstances, and does not create an attorney-client relationship
. Past practice is no guarantee o uture developments. While laws and legal procedure are subject to requent change anddifering interpretations in the ordinary course, this is even more truenow as the ederal government dismantles DOMA and extends ederalprotections to same-sex couples. None o the organizations publishing this inormation can ensure the inormation is current or be responsibleor any use to which it is put.No tax advice is intended, and nothing therein should be used, andcannot be used, or the purpose o avoiding penalties under the InternalRevenue Code.Contact a qualied attorney in your state or legal advice about yourparticular situation.
The Supreme Court victory in
United States v. Windsor 
striking down the discriminatory ederal Deense o Marriage Act (DOMA) afrms that allloving and committed couples who are married deserve equal legal respect and treatment rom the ederal government. The demise o DOMAmarks a turning point in how the United States government treats the relationships o married same-sex couples or ederal programs that are linkedto being married. At the same time, a turning point is part o a longer journey, not the end o the road. There is much work ahead beore same-sexcouples living across the nation can enjoy all the same protections as their dierent-sex counterparts.
 
AFTER DOMA:
WHAT IT MEANS FOR YOUTHE SUPREME COURT RULING ON THE DEFENSE OF MARRIAGE ACT: WHAT IT MEANS
2
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.Beore 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 unairly 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 careul 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 changeorms, train staf, and otherwise prepare or this change. We expect urtherguidance rom the ederal government and will update this Q&A and the“Ater 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’ benets; 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 benets.
 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
some 
ederal rights and benets,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 signicant 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 standardairest 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 ederalbenets based on marriage, couples who live in these states should proceed with caution beore deciding to marry. Depending on your individualcircumstances, getting married may be nancially or legally detrimental,especially i you are receiving certain government benets. Couples shouldseek out individualized legal advice rom a knowledgeable attorney beoretraveling 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 benets, he or shemay le an application and seek certain back benets. However, many benets 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 claimsor overpaid taxes, there are specic time limits on when reund claims may be brought orward. Te “Ater DOMA: What it Means For You” LGBOrganization Fact Sheet Series addresses many o these questions.Tere are many nancial benets 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?
No. Te
Windsor 
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 Respector 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 thereedom to marry nationwide.

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