New fight over gay marriage recognition

Benefits can hinge on states

Air Force Senior Airman Shyla Smith and Courtney Burdeshaw waited to get married on Thursday in New York City. New York State is one of 12 that allow gay marriage.
Mario Tama/Getty Images
Air Force Senior Airman Shyla Smith and Courtney Burdeshaw waited to get married on Thursday in New York City. New York State is one of 12 that allow gay marriage.

WASHINGTON — A day after the Supreme Court issued its landmark rulings on same-sex marriage, President Obama delivered his own opinion: “If you’ve been married in Massachusetts and you move someplace else, you’re still married.”

But Obama’s view was not exactly the one adopted by the high court, and that discrepancy has created the framework of a new fight launched in Washington and across the country on Thursday. While the Supreme Court said that same-sex couples should be eligible for federal benefits, it did not require that a state with laws against gay marriage accept such unions performed elsewhere.

As a result, advocates for gay marriage intensified their campaign to expand the practice across the country and began a new one to ensure that benefits are not limited to certain states; opponents vowed to hold the line. The two sides geared up for an all-out fight that resembled a political campaign, with promises to raise millions of dollars, utilize databases of supporters, and enlist elected officials to join their cause.


“These decisions will reenergize the public conversation about marriage, and now it’s time to redouble our efforts,” said Kim Daniels, a spokeswoman for the US Conference of Catholic Bishops, which believes that marriage should exist only between one man and one woman.

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With twin decisions on Wednesday, the Supreme Court essentially allowed gay marriage in California and struck down a major portion of the Defense of Marriage Act, or DOMA, which had prohibited same-sex couples from receiving federal benefits. But it left in place a patchwork of state laws that could affect how gay couples receive their new rights — and where.

Gay marriage is currently legal in the District of Columbia and 12 states — California will soon become the 13th — but it is not recognized in 37 states; 35 of them ban it.

Because of this week’s rulings, nearly 40 percent of the country’s 650,000 gay couples live in states that allow same-sex marriage, according to the Williams Institute, a think tank based at the University of California, Los Angeles, that studies sexual orientation.

Obama vowed to try to ensure that such couples who marry in states where their marriages are legal still retain their rights when they move to parts of the country that have banned gay marriage. While cautioning that he was “speaking now as a president as opposed to as a lawyer,” he said it was his “personal belief” that same-sex couples married in a state such as Massachusetts should have that marriage recognized in all 50 states.


“Under federal law you should be able to obtain the benefits of any lawfully married couple,” Obama said at a press conference in Senegal, part of a weeklong trip to Africa.

Obama has asked his administration to analyze the impact of striking down DOMA. The ruling means that more than 1,000 benefits are now available to same-sex couples.

The federal government relies on an array of rules that affect married couples. The departments of defense and veterans affairs, for example, base their decisions on where the couple were married, not where they currently live. But the IRS and Social Security Administration examine where they live, not where they were married.

That means that if a couple is married in one of the 13 states where same-sex marriage is or will soon be legal but moves to one of the other states, they would lose benefits.

Many of the rules surrounding marriage benefits can be executed by a presidential order, although some may take an act of Congress. How these decisions are made do not just have a cultural impact, they will have financial significance.


Surviving spouses of same-sex couples, for example, could gain access to spousal Social Security benefits. That could add more than $5,700 to the monthly income of the surviving spouse. But if the couple is living in a state that doesn’t recognize same-sex marriage when the spouse dies, the benefit might not be available under current rules.

Same-sex couples, on average, have been paying $1,000 more than heterosexual couples in taxes for employer-sponsored health care, according to the Williams Institute. Such a disparity could continue for those couples living in states that do not recognize their marriages.

The Supreme Court ruling also means same-sex married couples can file joint federal tax returns, which depending on their income levels could reduce the amount they owe. That ability could be restricted in states that don’t recognize same-sex marriage, since the IRS looks at where couples live.

Among those who could be affected is the Rev. Mike Schuenemeyer, a minister for lesbian, gay, bisexual, and transgender concerns in the United Church of Christ. Schuenemeyer married his husband five years ago in California during the brief window when gay marriage was legal in that state, but the couple now lives in Ohio, which does not recognize gay marriage.

“It makes things tenuous at this point,” Schuenemeyer said. “Everything that I’m hearing out of the Obama administration is they want to make things as equal as they possibly can, but folks are going to have to demand that they’re treated equally. It’s not going to just happen.”

House and Senate Democrats have filed bills to expand federal benefits to gay married couples even if they live in states that don’t recognize their marriages. But the legislation is unlikely to be approved in the GOP-controlled House. There, some conservatives are seeking to amend the Constitution to ban gay marriage.

Some Republican leaders, meanwhile, gave a notably muted reaction to the ruling. “The court’s made its decision,” House Speaker John Boehner said at a Thursday press conference. “I have no plans at this point in terms of how the House would move ahead on this.” While he disagrees with the DOMA decision, he said, he respects views on both sides.

Several court cases could further delineate the debate, including lawsuits in Nevada and Hawaii that challenge bans on same-sex marriage. Those states recognize domestic partnerships for same-sex couples but not marriage.

In the Nevada case, eight same-sex couples want the state to allow them to marry or to recognize their out-of-state marriages. A federal court dismissed their claim, and the Supreme Court decided on Thursday not to take the case. But it is still pending before an appeals court.

Gay marriage is being considered in several states, either through legislative action or ballot initiatives. It may appear on ballots in Illinois and Oregon next year, and gay rights advocates in New Jersey are contemplating several avenues to replace their civil unions system with marriage.

But throughout the more conservative South, same-sex marriage is universally banned.

Meghann Burke, attorney for the Asheville, N.C.-based Campaign for Southern Equality, which advocates for gay marriage across the South, said that as a result of the rulings, she will encourage committed couples in the South to get legally married in a state that allows same-sex marriage if doing so benefits them financially.

“The court’s opinion changes the legal landscape for same-sex couples,” said Burke, who married her wife in Massachusetts. “Couples should take advantage of the federal rights that come with marriage, and that’s true whether they live in a state that recognizes gay marriage or not.”

Matt Viser can be reached at Tracy Jan can be reached at tjan@