WASHINGTON -- The U.S. Supreme Court’s decision Wednesday to strike down the heart of the Defense of Marriage Act means that the federal government can grant a vast array of benefits to same-sex couples who are legally married in at least a dozen states.
The ruling still leaves decisions on who’s married and who isn’t to the states. That creates uncertainty for same-sex couples who married in one state but live in any of at least three dozen states that don’t recognize their marriages.
At stake are more than 1,100 federal benefits, including who’s eligible for Social Security survivor’s benefits, immigration benefits, military benefits and even whether married same-sex couples may file joint tax returns. In most cases, the answer may depend on where they live.
“It’s a huge sleeper issue that’s now going to come front and center,” said Steve Sanders, an associate professor of law at Indiana University who’s followed the cases that led to Wednesday’s ruling, Windsor v. United States.
Sanders and other legal experts say President Barack Obama and Congress could clarify the law. But some predict that the issue ultimately will find its way back to the Supreme Court. “There’s going to be a lot of work for lawyers,” Sanders said.
For Edith Windsor, Wednesday’s ruling is a victory. Windsor, 84, paid a $363,000 inheritance tax when her wife, Thea Spyer, died in 2009. They were married in Canada, and the state where they resided, New York, recognized their marriage. Under federal law, legally married couples are exempt from the tax Windsor paid.
With Wednesday’s ruling, the federal government owes Windsor a refund .
But it’s unclear how the law will apply outside the 13 states, plus the District of Columbia, that allow same-sex marriage. Some federal agencies might make the determination that married same-sex couples are married regardless of where they live. Others might consider as married only those who live in states where their marriages are legal.
“I’ve got to hope the people who work at these agencies have thought about this,” said Will Baude, a fellow at the Constitutional Law Center at Stanford University. “This is not a problem they have had to confront before.”
For tax purposes, for instance, the Internal Revenue Service looks at the state of residence when it determines who may file a joint return. If a same-sex couple were married in Connecticut but live in Kentucky, they might still have to file separately. The same couple also might not qualify for Social Security survivor’s benefits, which they’d receive in a state where same-sex marriage is allowed.
Chad Griffin, the president of the Human Rights Campaign, the nation’s largest gay-rights group, called on Obama and Congress to make sure that married same-sex couples don’t fall through a legal crack.
"Federal recognition for lesbian and gay couples is a massive turning point for equality, but it is not enough until every family is guaranteed complete access to the protections they need regardless of state borders,” Griffin said in a statement.
Sen. Dianne Feinstein, D-Calif., planned to reintroduce a bill to ensure that all married same-sex couples are recognized for federal purposes. Feinstein expected to have at least 41 co-sponsors for the bill, called the Respect for Marriage Act. Fifty-three senators, including three Republicans, have publicly expressed support for same-sex marriage.