Post-DoMA, which state’s law will determine marital status?

by on June 14, 2013  •  In DoMA, Obama administration
Constitution No DOMA

If the Supreme Court finds that the provision in DoMA that bars federal recognition of same-sex marriages is unconstitutional, will that ruling benefit couples only in the 12 states plus DC that allow gay marriage? Or will federal agencies treat couples as married if their marriage was legal where celebrated? This is a huge question, because in most states for which data can be obtained, the majority of marriages are performed for couples who do not live in that state.

Generally, federal recognition is based on the law of one’s state of residence, although there are exceptions. There is no statutory obligation to adhere to that policy, however. Will the Obama Administration adopt a policy that grants recognition to couples lawfully married somewhere, even if they did not reside there when the marriage occurred? Or will the existing rules simply be extended to gay couples, which could well not reach a major portion of the total number of gay marriages in the U.S. That’s going to be the question next up if/when the Court strikes down DoMA.

From the Washington Post:

…Officials have not signaled what Obama would do…

[The] dilemma stems from the fact that eligibility for some federal benefits — including Social Security payments to spouses and marital tax deductions — is determined based on the marriage laws of the states where the couples live and not where they were wed.

If the Supreme Court overturns the Defense of Marriage Act, full benefits would be available to same-sex couples who marry and live in the dozen states that legally recognize their relationships. But legally married gay couples that live in states that don’t recognize their marriages would be ineligible for a range of federal benefits.

Advocates say Obama could eliminate the discrepancy with an executive order or new regulations setting a couple’s “place of celebration” as the deciding factor in whether the U.S. government recognizes a marriage for the purposes of providing benefits.

Any move by Obama to broaden the effect of the court’s ruling could risk sparking new legal battles over the issue in the more than two dozen states that have moved to prohibit same-sex marriage, according to conservative activists…

Gary Bauer, president of American Values, an evangelical group, said making federal benefits available to gay couples no matter where they live would be an “overreach” that would be “countered by lawsuits and every other tool available to the people of those states.”

“Whatever authority [Obama] has in this regard, I don’t think it extends to something as fundamental as a de facto redefinition of marriage in states who through their democratic processes have made it clear they oppose such a change,” Bauer said.

“There will be tremendous pressure on the White House and on the president personally to move very quickly to implement the judgement and to implement it broadly,” said Richard Socarides, a longtime gay rights activist who was an adviser in the Bill Clinton White House.

“Thirty days is what he’s got,” Socarides added. “These are real people suffering real injury. If anybody tries to argue that they need six months or a year, there are going to be riots in the streets.”

White House officials declined to discuss the matter in detail, saying it would be premature to speculate about a future ruling. Still, spokesman Shin Inouye said, “The administration will, of course, be prepared to address any implications of the court’s decision.”…

According to research prepared by the Human Rights Campaign, federal agencies use an array of definitions of marriage to determine eligibility.

Some benefits would become available to married gay couples no matter where they live because agencies in certain cases make the determination based on where the wedding took place. That is the case for immigration issues and veterans benefits.

But, according to the rights group, a number of major benefits could be denied gay couples in states without legal marriage — including the right to take leave from work to care for a spouse or to file federal income taxes jointly.



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