Wonky Wednesday: What the United States v. Windsor decision means for you

By Conor Ahern, Task Force Ford Foundation Law Fellow

Today, the Supreme Court handed proponents of equality and LGBT couples throughout the United States a major victory. By declaring Section 3 of the so-called Defense of Marriage Act unconstitutional, we have affirmation of a message that we have been repeating for decades – there is no reason for the government to mistreat same-sex couples, and everyone is deserving of dignity and full legal equality.

But this affirmation is only partial. The Supreme Court is famously careful to frame its decisions in very narrow terms, and despite lingering ambiguity surrounding the material outcomes of this case, it is fair to say that the rights and protections we were hoping for – marriage throughout the entire United States, with heightened scrutiny protections for LGB people – were not extended through today’s verdict. So what exactly does this decision mean for the nation’s same-sex couples? The answer to that question mostly depends on the answers to two other questions: “Where does the couple live?” and “What type of benefit are we talking about?”

The first question is relevant because states are the traditional arbiters of who may enter into a marriage. States have the discretion to confer marital status upon their denizens based on criteria of their choosing, a power that extends to couples who have already been lawfully married in other states. States have been particular about these criteria, and this issue existed long before Massachusetts became the first state to allow same-sex marriages.[1] Because of this history and because Section 2 of DOMA remains intact, the current legal landscape indicates that same-sex marriages will only be recognized in 13 states and Washington, DC (the 12 states that had marriage equality before today, plus California[2]).

This leaves a mixed bag for same-sex couples throughout the United States. Unfortunately, most programs and agencies defer to the interpretation of the couple’s “state of domicile” (put simply, the “state of celebration” is the state where the marriage was legally performed; the state of domicile criteria vary by state, but this is typically the state in which the couple lives at least half of the time, pays taxes, is employed, etc.). This is unfortunate for same-sex couples, because it means that any couple that is unwilling to live in a state with marriage equality (or unable, as often is the case with military families) may be deprived of many of the important federal benefits that DOMA Section 3 explicitly withheld before being struck down today.

Immigration issues are a notable and critical exception, as marriage status for the purposes of immigration is determined by the federal government based on the marriage’s state of celebration. This means that binational couples will no longer be torn apart by the federal government, so long as they have legally solemnized their marriage in one of the thirteen states or DC, where same-sex marriages are performed.

But what about inheritance rights? Filing for federal taxes? COBRA benefits? Family Medical Leave Act eligibility? Social Security benefits? Medicaid eligibility? The breakdown of which benefits are affected is exceedingly complicated, very detailed and remains somewhat uncertain for guidance, see our After DOMA factsheets here. But in general, the answer is rosier for couples domiciled in states where marriages are recognized; these couples will enjoy the full suite of benefits – federal and state – that their heterosexual counterparts enjoy. But for those who live in states where their marriage is not recognized, second-class citizenship may not be a thing of the past. Many agencies recognize marriage by domicile as a policy matter, and following today’s decision they are free to change these policies to include same-sex couples domiciled in non-marriage equality states. Other agencies define marriage as a statutory matter according to state domicile status, and these changes will require a more cumbersome and lengthy process, if they are changed at all.

These qualifications do not mean that we should not celebrate this decision amazing decision; rather, they serve as a reminder that we have so much more work to do before we achieve full equality. Contemplating these barriers to full equality should not be exhausting or demoralizing – we should be exhilarated because we know how much we have accomplished, and are confident that it is only a matter of time and ardent effort before we achieve equality for all Americans. We hope you will join us in this continuing fight.