Watching Windsor: How Federal Agencies Are Implementing the Supreme Court’s Decision in United States v. Windsor

By Meghan Maury, Task Force policy counsel

As the weeks and months pass following the Supreme Court’s decision in United States v. Windsor, federal agencies have put out a continuing stream of decisions announcing how they will interpret that decision. Basically, agencies have fallen into two camps: those who follow the “place of residence” rule and those who follow the “place of celebration” rule.

In the last few days, we’ve seen agencies adopt both stances. The Social Security Administration began processing claims today for same-sex couples based on the place of residence rule. For the purposes of determining benefits for surviving spouses, SSA recognizes a couple’s legal marriage only if they continue to live in a state that recognizes marriages of same-sex partners.

Let’s break that down. If Melissa and Tashia are legally married in their home state, Massachusetts, but choose to retire to sunny Florida a few years later, under this rule they lose their Social Security survivor benefit. Melissa and Tashia must therefore make a choice: suffer through the hard winters in Massachusetts, or risk the possibility that they will not be able to survive without the benefits their partner worked for decades to accumulate.

In contrast, the Department of Education announced on Friday that federal financial aid programs would recognize all marriages that were legal under state law at the time of celebration, regardless of where that couple currently resides. This more expansive rule puts same-sex spouses on equal footing with their opposite-sex neighbors. States are generally required to give “full faith and credit” to contracts entered into in another state. (That’s a legal term, meaning that they must give full legal authority to those contracts.)  Unfortunately, outdated federal legislation makes it more difficult for some agencies (like SSA) to adopt policies that reflect the equal recognition embraced by the Department of Education.

Social Security benefits are earned – we pay into them with every paycheck – and when we pass away, we expect those benefits to be available to support our family. Same-sex couples make the same sorts of economic choices as opposite-sex couples. For many, this means that one spouse sacrifices career opportunities to spend more time taking care of children and household chores. The working spouse’s income increases exponentially because her career is given the opportunity to flourish. The non-working spouse expects, rightly, to be able to take advantage of the fruits of the working spouse’s labor. Until the Social Security Administration is able to adopt an interpretation that puts same-sex couples on equal footing with opposite-sex couples, the LGB community will continue to suffer real economic harm.