Starkest of contrasts: Bush and Lawrence, Obama and Windsor

The Obama administration’s reaction to the U.S. Supreme Court rulings striking down DOMA and Proposition 8 provides a stark contrast to that of the predecessor administration.

In 2003, when the Supreme Court struck down laws prohibiting private intimate contact between same-sex partners (in Lawrence v. Texas), President George W. Bush had nothing to say, at least not publicly. His press secretary, Ari Fleischer, told reporters that the Bush administration had not filed a brief in the case and that it considered the decision to be “a state matter.”

The Bush administration took no action to determine to what extent the Lawrence ruling might apply to various federal programs, such as the military’s “Don’t Ask, Don’t Tell” law banning openly gay servicemembers. It continued enforcing the ban and, though statistics showed the Bush administration reduced the number of discharges under the policy, it did so before Lawrence was issued and at a time when the demand for troops in Iraq and Afghanistan was intensifying.

In the year following Lawrence, President Bush endorsed a Congressional bill seeking a federal constitutional amendment to ban marriage for gay couples nationally.

Ten years later, the Obama administration’s response has been dramatically different. President Obama issued an immediate statement in support of the Supreme Court rulings in U.S. v. Windsor and Hollingsworth v. Perry. Windsor struck down the key provision of the Defense of Marriage Act (DOMA), and Perry dismissed an appeal, effectively upholding a district court decision that struck down California’s ban on marriage for same-sex couples, Proposition 8.

“The laws of our land,” said Obama, “are catching up to the fundamental truth that millions of Americans hold in our hearts: when all Americans are treated as equal, no matter who they are or whom they love, we are all more free.” He said he had already “directed the Attorney General to work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.”

            President Obama, traveling on Air Force One to the start of a multi-nation tour in Africa, also telephoned the plaintiffs in both cases, expressing his support of the ruling and thanking them for their efforts.

U.S. Attorney General Eric Holder issued a statement of support for the Supreme Court rulings and another statement June 28, saying the federal government would, through the Office of Personnel Management (OPM), “now be able to extend benefits to Federal employees and annuitants who have legally married a spouse of the same sex.” The statement added that DOJ would “continue to coordinate with other federal agencies to implement this ruling as swiftly and smoothly as possible.”

            Elaine Kaplan, the openly gay acting director of OPM sent a message to all federal department heads offering some preliminary details of how the administration would go about complying with the DOMA ruling. She said federal employees married to same-sex partners would have until August 26 to make “immediate changes” to their federal health plans, adding that they would be able to do so again later in the year, during the federal government’s annual “open season” period for making changes to federal health coverage plans. Under these same deadlines, she said, federal employees could also opt in their same-sex spouses and families for coverage under federal dental, long-term care, and life insurance plans. Retired federal employees who are married to same-sex spouses will have two years to notify the federal government that they are married and qualify for retirement benefits. She said same-sex spouses would now be eligible for survivor annuities.

Secretary of Defense Chuck Hagel issued a statement after the DOMA ruling was released.

“The department will immediately begin the process of implementing the Supreme Court’s decision in consultation with the Department of Justice and other executive branch agencies,” said Hagel. “The Department of Defense intends to make the same benefits available to all military spouses — regardless of sexual orientation — as soon as possible.”

At a press conference later in the day, Hagel was even more firm, saying, “Make no mistake: It will be a decision implemented in every way, as it should be.”

Joining him at the press conference, the Chairman of the Joint Chiefs of Staff, General Martin Dempsey, reiterated the point: “The Joint Chiefs have been very clear that we’ll follow the law of the land, and the law of the land has just changed, and we will now, as quickly as possible, assess what that means.  I’m sure there will be some cost, but we’ll figure it out, because we’ll follow the law of the land.”

Other department heads, including Secretary of State John Kerry, also issued statements in support of the DOMA ruling. Homeland Security Secretary Janet Napolitano issued a statement Monday (July 1), saying, “I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.” Health and Human Services Secretary Kathleen Sebelius said HHS would “work with the Department of Justice to review all relevant federal statutes and ensure this decision is implemented swiftly and smoothly.”

Making the transition between no recognition to equal recognition go smoothly may require Congressional action in some instances. Toward that end, U.S. Senator Dianne Feinstein reintroduced the Respect for Marriage Act in the Senate within hours of the Windsor ruling. Although Feinstein’s office did not get back to this reporter by deadline, the text of last year’s bill essentially repeals both sections of DOMA –both the “no recognition” provision and the section that allows one state to ignore the valid marriage license issued by another state. The Senate bill introduced Friday had 40 sponsors, including openly lesbian Senator Tammy Baldwin (D-Wisc.) and Senators Barbara Boxer (D-Calif.), Dick Durbin (D-Ill.), Carl Levin and Debbie Stabenow (Democrats of Michigan), and Elizabeth Warren and William Cowan (Democrats of Massachusetts).

Rep. Jerrold Nadler (D-NY) and introduced the bill into the House with 160 sponsors.

Feinstein said the Respect for Marriage Act is still “necessary because inequities in the administration of more than 1,100 federal laws affected by DOMA—including Social Security and veterans benefits—will still need to be fixed.”

Nadler said the Act would also provides a uniform rule for recognizing couples under federal law… no matter where they live.”

There will be many questions to be answered to about the existing definitions relating to marriage and spouses in various federal programs. Some federal programs recognize a marriage license regardless of where the couple lives; others are tied to the state of residence. And given that 37 states still ban recognition of same-sex marriages, many same-sex couples –including those with marriage licenses—could have trouble accessing certain federal benefits.

For instance, under DOMA, a person who received health insurance coverage under their same-sex spouse’s health plan had to pay income taxes on the value of that coverage. Now, they don’t. And under DOMA, if the spouse lost his or her job, he or she could continue their health coverage under the federal COBRA plan, but the same-sex spouse could not. Now, they can.

On the other hand, the Internal Revenue Service is expected to allow duly married same-sex couples to start using the designation “married,” whether filing jointly or separately. But the IRS’s current practice relies on whether the state in which one resides considers one married.

Under the Social Security statute, says Mary Bonauto, civil rights project director for Gay & Lesbian Advocates & Defenders (GLAD), the government looks at the state of domicile of the decedent for survivor benefits, and looks at the state of domicile at the time of application for spousal benefits. That could be a complication for same-sex couples with marriage licenses who are living in one of the 37 non-marriage equality states.

“This will likely be an evolving area of law and you should consult with a qualified tax expert about your circumstances,” advises an “After DOMA” guide prepared by GLAD, Lambda Legal, the National Center for Lesbian Rights, the ACLU and other national groups.

“There’s a lot of intensive legal research still being done, including by lawyers within the Administration and the various agencies that administer federal programs,” said Jenny Pizer of Lambda Legal.

And there are other complications, too. For example, in some instances, couples that have a civil union or domestic partnership relationship may be able to tap into some federal benefits.

According to Pizer, the Social Security statute “can allow eligibility for those entitled to inherit per the state’s intestate inheritance law.”

“That’s unusual, though,” cautioned Pizer. “For the most part, a recognized marriage is required.  And that fact puts a bright light on the discriminatory effect of a state’s choice to offer a lesser status instead of marriage where there’s no constitutional barrier.”

“For the most part,” said Pizer, “the many important federal benefits and protections that turn on one’s marital status do require marriage. That’s why the many tens of thousands of couples who have been in civil unions and domestic partnerships for years haven’t been able to access federal benefits. And that’s why litigation for federal benefits began after couples began marrying in Massachusetts, not when they began entering civil unions in Vermont.”

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