Life After Windsor: Is DOMA Really Dead?

 

On June 26, 2013, the Supreme Court issued its opinion in United States v. Windsor striking down the Defense of Marriage Act’s (“DOMA”) federal definition of marriage.  However, while people celebrated in the streets that “DOMA is finally dead,” this is only half true.   The DOMA legislation, which was passed during the Clinton administration, is comprised of two components.  The first component involved the federal definition of marriage as  being between one man and one woman.  This prong was found to be unconstitutional by Justice Kennedy in the recent Windsor decision.  The second prong provides that the individual states do not have to recognize and give full faith and credit to marriages of other states, thus allowing states that have statutory or constitutional bans on same-sex marriage to refuse to recognize such marriages from other states.  This piece of DOMA, which still serves as a serious roadblock to full marriage equality, still stands today.

So what significance does Windsor actually have?  In the short time since the decision came down, the Obama Administration has started to tackle the decision’s implication on the 1,138 federal benefits available to citizens.  Attorney General Eric Holder has instituted an AG Task Force to comb through the myriad of federal laws and give guidance on how the decision impacts individuals’ ability to apply for and receive certain federal benefits.  One area where there has been immediate change involves immigration laws.  Previously, DOMA prevented lawfully married lesbian and gay couples from obtaining lawful permanent residence (“green cards”) through their marriage.  Now that Section 3 of DOMA has been struck down, American citizens and lawful permanent residents can submit green card applications for their same-sex spouses.  This also allows same-sex marriages from other countries to be given comity under federal law for immigration purposes.

Another area that has seen an immediate change since the Windsor decision is certain Federal Civil Service laws.  A gay or lesbian partner can now add his/her spouse to their federal health insurance plan and can election to have their same-sex spouse as their survivor for annuity benefits.  The federal government has provided a special 60-day window outside of normal election periods for same-sex couples to make such elections with the last day for open election ending on August 26, 2013.

Although 37 states still do not recognize same-sex marriage – either through statutory or constitutional bans – changes in the federal laws can still apply to same-sex couples living in those states.  Many of the federal programs base their recognition of a valid marriage based on the “place of celebration” rule – recognizing a same-sex marriage as valid if valid in the state where the couple had the marriage ceremony.

Following the Supreme Court’s issuance of the DOMA decision, President Obama released a statement observing that

[t]his ruling is a victory for couples who have long fought for equal treatment under the law; for children whose parents’ marriages will now be recognized, rightly, as legitimate; for families that, at long last, will get the respect and protection they deserve; and for friends and supporters who have wanted nothing more than to see their loved ones treated fairly and have worked hard to persuade their nation to change for the better.

For more information on the immediate and long-term impact of the Windsor decision on federal law and federal benefits, please visit the following sites:

LGBT/Civil Rights Organization Fact Sheet Series: www.familyequality.org/get_informed/parent_resources

Federal Benefits Administration Letter: www.opm.gov/retirement-services/publications-forms/benefits-administration-letters/2013/13-203.pdf

Obama Administration Statements on the Supreme Court’s DOMA Ruling: http://www.whitehouse.gov/blog/2013/06/27/obama-administration-statements-supreme-court-s-doma-ruling