Nel's New Day

September 18, 2013

Why We Need Federal Law on LGBT Marriage!

Since the Supreme Court overturned a part of DOMA, the federal government decided to give all federal benefits to married same-sex couples who live in one of the 13 states and the several other jurisdictions, including Washington, D.C. and six Indian reservations, that have legalized marriage equality. Same-sex couples who live in other areas but who married in one of these states or other areas can get some of the federal benefits, but not all of them. Social Security denies spousal benefits for legally married gay couples who live in one of the 36 states that don’t recognize gay marriage. Legally married same-sex spouses of activity military service members can get the same benefits as opposite-sex spouses, but veterans could not until the Veterans Administration changed its mind, following a federal court ruling.

Confused yet? Let’s talk about the federally-funded National Guard. Gov. Mary Fallin announced that Oklahoma has become the fourth state to block processing the same benefits, such as health care and housing, for legally married same-sex spouses of National Guard members that married opposite-sex spouses receive. In so doing, Oklahoma followed Texas, Mississippi, and Louisiana.

oklahoma national guard fallin 

In Oklahoma, however, the National Guard was already processing requests from same-sex couples, according to Oklahoma National Guard spokesman Col. Max Moss. Earlier this summer, they indicated that they were following federal law on benefits applications after the Pentagon issued the directive mandating the same benefits for all legally married couples.

Because the National Guard is funded and sometimes directed by the federal government, couples still get the benefits if they go to a federal facility to apply. National Guard members in the other three states can also get equal benefits for their married spouses by going to federal facilities. 

Because the Defense Department has federal facilities in every state, National Guard members can find one, although it may cause more duress for them than going to state facilities. A greater problem, however, will be  how to include same-sex couples in Medicaid expansions. Although Medicaid is paid for from federal funds, it  is operated out of state facilities because the program is state-run. A refusal to allow same-sex couples to enroll in Medicaid may land states in court—perhaps even losing their bans on same-sex marriage laws.

Louisiana has even more problems with income tax. The IRS now permits all legally married same-sex couples to file joint returns no matter where they are married. The state of Louisiana requires the same filing status on both state and federal tax returns, but it doesn’t permit same-sex marriage. Therefore it won’t allow married same-sexcouples to file joint state returns, but IRS policy says that they are permitted joint federal returns.  

Confusion reigns even in states that permit split returns, separate for the state and joint for the federal government. Because state returns are often based on federal returns, these couples may have to first prepare and file a real return—reflecting their joint taxpayer status—and then prepare (and not file) a dummy return as a single taxpayer in order to get the correct adjusted gross income amount necessary for transfer to the state return. Before DOMA was overturn, same-sex couples in states that allow joint state returns because of marriage, civil unions, or domestic partnerships had to do the reverse—producing single-taxpayer federal forms and joint-taxpayer state forms.

Another order from the Treasury Department states:

“Because employee benefit plans are extensively regulated by federal law, this announcement means that even employers in states that do not recognize same-sex marriage will be required to recognize such marriages for many employee benefits purposes.” 

It appears that federal employees in all states will receive these benefits. This chart delineates the conditions.

The Social Security mandate that same-sex couples must live in a place that honors marriage equality to get these benefits is further muddied by civil union or domestic partnership laws of individual states that also ban legal marriage for same-sex couples. Those couples may be able to claim such benefits because it defers to state inheritance law to determine eligibility (and all civil union laws allow partners to inherit as if they are married).

A major issue for married same-sex couples who don’t live in states recognizing marriage equality is getting a divorce. When Massachusetts first legalized same-sex marriage, many couples traveled there to be wed. States such as Texas that do not recognize married same-sex couples also refuse to recognize the divorce of these same-sex couples. When two gay couples in Texas sued Texas for divorce, Attorney General Greg Abbott argued that recognizing the divorce would also recognize marriage in the state, now banned by the state constitution. The case has now gone to the state Supreme Court.

The divorce issues started at least five years ago when a Rhode Island resident tried to divorce the woman she married in Massachusetts. At that time, Rhode Island did not recognize marriage equality, and the woman ended up in legal limbo. If she remarried, would it be polygamy? How could they legally divide joint assets? Another woman married in Connecticut and then went back to her home state where there was no court to deal with the child that belonged to both of them if they had stayed in Connecticut.

Dividing assets differs depending on the length of time that a couple has been married. But couples getting divorced may have been together for decades before they were able to legally marry. Some courts may decide to determine that period of time as the couple being “just friends.” 

Transgender people face horrible legal consequences from the muddled laws. For example, Nikki Araguz was denied death benefits in Texas after her volunteer firefighter husband was killed in the line of duty. A judge ruled that her marriage was “invalid” because she is transgender. Three years later, while she is still litigating the case, she wanted to remarry. Texas turned her down because the state is treating her as a man. Araguz’s identification identifies her as a female, and she has the appropriate documentation, including an amended birth certificate. The Family Code in Texas states that this identification is sufficient, but a clerk insists that the state’s ban on same-sex marriage superceded the Family Code. Because her original birth certificate listed the wrong gender, she cannot be legally married. In Texas, she could be a lesbian and marry a woman because Texas sees her as a man. 

This situation is not unique: several states insist on using the gender assigned at birth as the ultimate and only gender for their residents despite gender expression and transition.  

Araguz is still litigating Texas’s refusal to give her benefits as a widow. The 13th District Court of Appeals in Corpus Christi is hearing Araguz’s case today and will decide whether the state will be required to recognize her marriage to Thomas Araguz. Heather Delgado, Thomas Araguz’s ex-wife, is suing to have his marriage to Nikki Araguz declared invalid so that Delgado can then receive the widow’s benefits. 

Litigation in the next year–or more–will profit lawyers and deplete coffers in many states. At the same time, the confusing legal system distorting rights of marriage—and divorce—for LGBT people is ruining lives. Time to fix this whole system!


  1. Reblogged this on Civil Rights Advocacy and commented:
    This is a very good summary of the confusion and legal hassles resulting from the Supreme Court decision in partially overturning DOMA – the federal version of the Defense of Marriage Act. We need to see a Loving v. Virginia type decision so that all lesbian and gay couples can marry where ever they live and have that marriage recognized.


    Comment by civilrightsactivist — September 19, 2013 @ 4:57 AM | Reply

  2. Wow, this is a fantastic conglomeration of tangled facts I couldn’t even try to follow without your help. Thank you.


    Comment by Lee Lynch — September 18, 2013 @ 9:26 PM | Reply

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