Why Obama Can’t Do Anything More To Extend Same-Sex Marriage Benefits

The first same-sex couple who legally wed in Oregon. CREDIT: TWITTER/OREGON UNITED FOR MARRIAGE
The first same-sex couple who legally wed in Oregon. CREDIT: TWITTER/OREGON UNITED FOR MARRIAGE

Since the Supreme Court overturned the Defense of Marriage Act (DOMA) last summer, requiring the federal government to recognize legal same-sex marriages, the Obama administration has taken steps to extend benefits to those couples. The Justice Department will announce this week that it has done everything that it can do to accommodate same-sex marriages without Congress passing legislation to remove a few remaining hurdles.

In almost all cases, same-sex couples will be eligible for all benefits that might be conferred to other married couples, including Department of Defense and federal employee benefits, spousal insurance plans, recognition for immigration and visa purposes, and joint federal tax filing. The Department of Labor will also announce one more change this week, clarifying that under the Family & Medical Leave Act, an employee is eligible for leave to care for a same-sex spouse even if they live in a state that doesn’t recognize their marriage.

The primary problem that arises is if a couple moves to a state where their marriage is no longer recognized; in those cases, they may not be able to inherit Social Security benefits or obtain certain Veterans benefits. That’s because the laws that govern those benefits have “place of domicile” restrictions that are separate from DOMA. Whereas other benefits have been extended through “place of celebration” recognition — i.e., a marriage is valid so long as it was recognized in the state where it was solemnized — Social Security and Veterans’ benefits are bound by where the couple lives.

BuzzFeed points out that there is a small exception for Social Security in Colorado, Nevada, and Wisconsin. Because those states offer some benefits to same-sex couples through civil unions or domestic partnerships, those couples are also eligible to inherit Social Security benefits.

And though certain Veterans survivor benefits are impacted by the restrictions, others are not. Veterans Affairs will still be able to cover funeral costs, allow spouses to be buried in a VA cemetery, transfer post-9/11 GI Bill education benefits, invite participation in various insurance programs, and provide survivors and dependents education assistance.