Federal Government to Recognize Utah Gay Marriages

While the state of Utah - or more specifically, the Governor and Attorney General - is saying that it will not recognize same sex marriages officiated before the U. S. Supreme Court stayed the District Court's ruling, the Obama administration has announced that the federal government and its agencies WILL recognize such marriages. This decision underscores what I believe will be a growing pressure on anti-gay states to ultimately recognize at a minimum gay marriages performed outside of their borders.  The failure to do so will become increasingly burdensome and result in more and more lawsuits that must be defended.  The New York Times looks at this surprising - and welcomed - decision:

The Obama administration on Friday said that it would recognize as lawful the marriages of 1,300 same-sex couples in Utah, even though the state government is refusing to do so.

Wading into the fast-moving legal battle over same-sex marriage rights in one of America’s most socially conservative states, the administration posted a video on the Justice Department’s website making the announcement. Attorney General Eric H. Holder Jr. said that the federal government would grant federal marriage benefits to the same-sex couples who rushed to obtain marriage licenses after a federal judge last month unexpectedly struck down Utah’s ban on same-sex marriage.

The Justice Department’s intervention added a further sense of whiplash to the highly charged dispute, which began on Dec. 20 when a Federal District Court judge, Robert J. Shelby, ruled that Utah’s constitutional amendment limiting marriage to one man and one woman violated the federal Constitution.

As same-sex couples flooded county clerk’s offices in Utah, the state government asked a higher court to block the order while it appealed the ruling, but a federal appeals court declined to do so, and the marriages continued. On Monday, the Supreme Court issued a stay, bringing a halt to further same-sex marriages while the litigation continues. That decision effectively left those same-sex couples in legal limbo.

Then, on Wednesday, the office of the governor of Utah, Gary R. Herbert, said that the state would not recognize as lawful the same-sex marriages already licensed while it pressed forward with its appeal of the ruling.

But Mr. Holder said the federal government would not do likewise. He invoked as a historic call for equality a June ruling by the Supreme Court that struck down a ban on federal recognition of same-sex marriages that are legal under state law, saying the Justice Department was “working tirelessly to implement it in both letter and spirit.”

“In the days ahead, we will continue to coordinate across the federal government to ensure the timely provision of every federal benefit to which Utah couples and couples throughout the country are entitled — regardless of whether they are in same-sex or opposite-sex marriages,” Mr. Holder said. “And we will continue to provide additional information as soon as it becomes available.”

A variety of federal benefits are accorded to legally married couples, including being able to file jointly for federal income taxes; exemption from estate taxes and eligibility for some Social Security claims if one spouse dies; eligibility for health and life insurance for spouses of federal employees; the ability to sponsor a spouse who is not a United States citizen for a family-based immigration visa; and eligibility for survivor benefits for spouses of soldiers and diplomats.

Minneapolis Marriage Ads Draws Condemnation of Christofascists

In a smart marketing move aimed at increasing gay tourism and the city's bottom line, Minneapolis has launched a marketing campaign to attract residents of currently anti-gay marriage states like Wisconsin and Illinois to make a trip to the city to get married.  While their marriages would not be recognized by their home states, those married in Minneapolis or other parts of Minnesota would enjoy a number of federal benefits.  This ad campaign has the spittle flying amongst Christofascists groups but also underscores the growing economic disadvantage of anti-gay states like Virginia.  Think Progress looks at Minneapolis' campaign and the reactions of the knuckle dragging religious zealots.  Here are highlights:

Though the fight for marriage equality is still playing out across many states, the advancement of federal benefits for legal same-sex marriages has an immediate effect for couples throughout the entire countries. Conservatives, however, don’t want families who live in states that don’t have marriage equality to access those benefits, and thus they’re trying to pretend that they don’t exist.
 
Minneapolis Mayor R.T. Rybak (DFL) has been reaching out to Wisconsin and Illinois same-sex couples, inviting them to travel to his city to marry now that Minnesota has marriage equality.

According to the National Organization for Marriage, however, Ryback is trying to “force same-sex marriage on neighboring states”:

Minneapolis mayor R.T. Rybak is launching an ad campaign encouraging Wisconsin same-sex couples to come to his town to ‘marry’. The campaign, which will start running in Milwaukee and Madison area publications, is already being called a shameless attempt at self-promotion, with the mayor simply using marriage to raise his own profile.

Wisconsin law is irrelevant in Minnesota, so nothing is stopping Wisconsin residents from driving across the border to legally wed. And Wisconsin law is irrelevant for many of the federal benefits that recognize place of celebration, such as immigration green cards, benefits for military servicemembers and federal employees, veterans’ benefits, Medicare nursing home benefits, and the benefits of filing taxes jointly. As Wisconsin couples married in Minneapolis access those federal benefits, the state is perfectly welcome to continue to not recognize their marriage at the state level — no “forcing” is at hand.

Surely Rybak is hoping to get some tourism business to his city from marriage equality, but he’s also got marriage licenses for any and all same-sex couples who want to come get one. And of course, if states like Illinois and Wisconsin are upset they aren’t getting the revenue from those marriage licenses, there’s an easy way to fix it so that they can.

NYT: The Future of Gay Marriage

With George Zimmerman literally getting away with murder of a young black and the United States Supreme Court's cowardice in its narrow ruling in the Proposition 8 case last month, one thing is clear about America: some citizens are deemed lesser in their rights and humanity than others and America's laws reinforce this inequality and at best second class  citizenship.   In a main page editorial, the New York Times laments the situation and slams New Jersey Governor Chris Christie for his cowardice in pandering to Christofascists on the issue of marriage equality in New Jersey.  Here are excerpts:

In New Jersey, Gov. Chris Christie, a Republican, is standing by his 2012 veto of a measure to allow gay couples to marry and is refusing to free Republican legislators to follow their conscience on an override vote. Mr. Christie is imposing a large ideological tax on thousands of couples and their families whose interests he is supposed to protect. He is depriving them of federal benefits, which their tax payments help underwrite.

The Defense of Marriage Act ruling struck a blow against injustice, but it also accentuated the unfairness to same-sex couples who would like to get married but live in states that do not permit it and therefore cannot take the same advantage of more than 1,000 federal benefits available to other couples (unless they get married in one of the states where same-sex marriage is legal). By disposing of the California case on narrow procedural grounds, the Supreme Court avoided the necessary reckoning about the fundamental violation of equal protection created by state laws that prohibit same-sex couples from marrying. It perpetuated a mean and irrational patchwork in which duly wed couples may not be considered married when they cross state borders.  

Eliminating that unfair system will require a multipronged effort — to add more states to the list of 13 that permit same-sex marriage and to challenge remaining state laws that violate the standards of equal protection as the Defense of Marriage Act did. Last Tuesday, the American Civil Liberties Union filed a challenge to a Pennsylvania law that allows marriage only between a man and a woman and rejects other states’ marriage equality laws.

These suits aim to build on Justice Anthony Kennedy’s majority opinion invalidating the Defense of Marriage Act, including his insight that the federal government’s refusal to recognize some marriages denied married same-sex couples a “status of immense import” and deprived children of “the integrity and closeness of their own family.” The same can be said of denying gay couples the right to marry in the first place, . . . . .

House Republicans spent millions of taxpayer dollars on private lawyers’ fees to defend the Defense of Marriage Act’s indefensible discrimination when the Obama administration decided it would no longer do so.

Even now, though, there is a serious risk that legally married individuals will lose out on valuable Social Security and veterans’ benefits because language in the applicable statutes seems to determine whether couples are married based on where they live rather than where their marriage was celebrated.  

The Times gets it right.  These bans on gay marriage do not "protect marriage."  They have one purpose and only one purpose: to harm sames sex couples and punish them for failing to conform to Christofascist religious dogma.  Once again, religion proves itself to be a vicious evil.  Shame on Chris Christie.

Post DOMA Legal Rights and Federal Benefits of Married Same Sex Couples

In the wake of the Supreme Court ruling in United States v. Windsor many questions remain as to what federal rights will now be available to married same sex couples.  It will be a matter of time before the availability of many federal benefits becomes clarified.  Federal employees will benefit under new rulings of the Office of Personnel Management regardless of whether or not they live in an anti-gay state like Virginia.  The impact on benefits under Social Security and other programs/benefits remains unclear.  One thing that is clear is that couples with civil unions and domestic partnerships will not receive federal benefits.  Here is a summary via a Washington Post story:

FEDERAL BENEFITS:
The Obama administration responded to the Supreme Court ruling by making health, vision and dental benefits available to all same-sex spouses and children of legally married federal employees. In a memo on Wednesday, OPM said those guidelines will apply to all federal workers, regardless of whether they live in states that have banned same-sex marriage — Virginia, Ohio and Mississippi, for example.

That means same sex couples living anywhere in the U.S. will qualify for federal-employee benefits as long as they hold marriage licenses from any of the 13 states that recognize same-sex marriage, as well as from the District of Columbia, which has also legalized such unions.

SOCIAL SECURITY/VETERANS BENEFITS:
Questions remain about how the administration will treat same-sex couples and domestic partners outside the federal workforce, including with Social Security, tax and veterans’ benefits. The agencies that handle those programs have not issued guidance.

OPM has given legally married same-sex couples until Aug. 26 to apply for federal-employee benefits and two years to change their status for retirement benefits.

DOMESTIC PARTNERSHIPS:
couples who are not legally married “will remain ineligible for most federal benefits programs.” However, any existing benefits provided to domestic partners will remain intact, OPM said.

Here are excerpts from OPM's July 3, 2013 Memorandum:

[A]ll legal same sex marriages that predate the decision are being treated as new marriages; enrollees will have 60 days from June 26, 2013 (i.e., until August 26, 2013) for enrollment actions.

Benefits coverage is now available to a legally married same sex spouse of a Federal employee or annuitant, regardless of the employee’s or annuitant’s state of residency.

Legal same sex marriages entered into following this decision will be treated in the same

manner as opposite sex marriages, regardless of an employee’s or annuitant’s state of residency.

Coverage is available to a legally married same -sex spouse of a Federal employee or annuitant, regardless of his or her state of residency.  This decision does not extend coverage to registered domestic partners or  individuals in civil unions.

In addition, the children of same sex marriages will be treated in the same manner as those of opposite sex marriages and will be eligible family members according to the same eligibility guidelines. This includes coverage for children of same sex spouses as stepchildren.

One thing is clear:  in Virginia and many other anti-gay states, same sex couples will continue to hold an inferior level of citizenship and will have no employment non-discrimination protections and will be deemed legal strangers under state law.  There remains much work to be done.

  

What Does DOMA's Demise Mean for Gay Couples?

My activist friend John Becker and his husband at the Supreme Court

Many are asking the question of: what does the striking down of DOMA do for married same sex couples?  The answer is that depends on (i) where you live, (ii) where you were married, and (iii) what federal benefits are you talking about.   It will be complicated sorting it all out and, as one Harvard law professor said, much litigation will still need to take place to gain fully equality for all legally married couples.  In the interim, couples will need to see how marriage may benefit them.  More on this issue will follow, but here's a brief overview via the Washington Post:

“The effect is going to vary based on which of the thousand-plus statutes or regulations are affected.”

There are some clear-cut cases. It seems pretty clear that legally married same-sex couples where one member is employed by the federal government are entitled to spousal benefits, just the same as any other married couple. For other legally married couples who don’t live in states where same-sex marriage is recognized, there’s some question as to whether the “state of celebration” or “state of residence” matters. Usually, the former is the standard used, meaning a marriage is valid if it’s valid in the state it was celebrated. That would mean most legally married same-sex couples, regardless of where they got married, are entitled to spousal benefits.

Other areas, like tax law, may require additional rule-making before same-sex couples are treated equally. “Some operate just based on policy, without getting into a regulation or statute, so those can be modified very quickly,” Tara Borelli, an attorney at Lambda Legal who was also a counsel in Golinski. ”Others require rule-making.” And others require statutory changes. Borelli notes that Social Security will probably have to be changed by Congress for same-sex couples to be treated equally.

This does open the door for  bi-national same-sex couples to be treated equally under the law. That means that comprehensive immigration reform probably need not include a provision specifically tailored to making sure bi-national partners of same-sex couples can get visas automatically, the same as opposite-sex partners. As Paul Smith, a partner at Jenner & Block and arguably the leading gay rights litigator in the country (he won Lawrence v. Texas, overturning state bans on gay sex), told me, “My understanding is that the elimination of DOMA would by itself mean that all bi-national married couples would have the same rights, whether same sex or not.”