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Thu Jun 27, 2013, 05:31 PM

Hoping to get some better understanding from the smarter people here.

I've been so overjoyed since yesterday about SCOTUS decisions that have moved us towards equality, but now that I've thought about it, and read some of the news stories, I have more questions than ever, and was hoping some of the more well read, and "law smart" people here could help me understand:

1. Am I understanding correctly that you have to live in a state that recognizes gay marriage/unions in order to receive the federal benefits? (several of the news articles I've read has mentioned this)
2. Does this mean that If someone gets married in a state, say Washington state, but lives in a state that has no law.. for or against, that they automatically are not considered married by the federal government? Same question, but what if they live in a state that has specifically denied same sex marriage rights? I can understand (don't agree, but understand) that our marriages won't be recognized for states benefits/laws, but I don't understand how the federal government can refuse any state's marriage certificate now, regardless of where the persons live.

3. What about expats who live outside of the US? Does their benefits rely on the law of the Conroy they live in?

4. If a couple gets married in a state that allows.. and lives in that state, but at some point moves to a state that doesn't allow it, are they still married as far as federal law is concerned?

5. If a couple gets married, and lives in a "legal" state, get divorced, and some judgment (custody, alimony, child support) etc.. is judged against one, and that one moves to a state that specifically defines marriage as between a "man and woman"... can they use this as a way to get out of the legal decision, since the state of residency law is used, and they were "never really married" to begin with by that states law?

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Reply Hoping to get some better understanding from the smarter people here. (Original post)
Amimnoch Jun 2013 OP
DreamGypsy Jun 2013 #1
Amimnoch Jun 2013 #4
Ms. Toad Jun 2013 #7
DreamGypsy Jun 2013 #8
DreamGypsy Jun 2013 #2
MNBrewer Jun 2013 #3
Amimnoch Jun 2013 #5
MNBrewer Jun 2013 #6
Amimnoch Jun 2013 #9

Response to Amimnoch (Original post)

Thu Jun 27, 2013, 05:48 PM

1. Check out Frequently Asked Questions: Defense of Marriage Act (DOMA) | June 2013

At GLAAD, http://www.glaad.org/marriage/doma#legalthrucountry -

How does the ruling on DOMA affect families?

The ruling on DOMA will have major effects on families concerning a number of different federal rights which provide necessary marital benefits. Some areas that are affected include military family benefits, social security benefits, multiple areas of tax categories, hospital visitation rights, and healthcare benefits. These are just a few of the numerous marital benefits that were denied to families because of DOMA, but will now be granted to same-sex couples in legal marriages.

How does the ruling on DOMA affect binational families?

Because the federal government now recognizes benefits under DOMA, binational couples will be allowed to sponsor foreign-born spouses for United States residency.

<snip>

Why was it important to get rid of Section 3 of DOMA?

The repeal of section 3 of DOMA creates huge changes for same-sex couples in the United States. This grants legally married same-sex couples the same benefits received by their straight peers including:

Health insurance and pension protections for federal employees' spouses
Social security benefits for widows and widowers
Support and benefits for military spouses
Joint income tax filing and exemption from federal estate taxes
Immigration protections for binational couples

This step in history is a step in the right direction for the United States.


Unfortunately, for military families there is this (emphasis mine) -

How does the ruling on DOMA affect military families?

A military family living in a state with marriage equality will be granted federal benefits now that DOMA is repealed. These well-earned benefits include, military health insurance, increased base and housing allowances, relocation assistance, and surviving spousal benefits.


More at the link. Hope this helps.

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Response to DreamGypsy (Reply #1)

Thu Jun 27, 2013, 06:31 PM

4. Thanks, this has some interesting information to know.

and the other one as well.

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Response to DreamGypsy (Reply #1)

Thu Jun 27, 2013, 09:23 PM

7. The first statement is overly broad.

Here is their page heading :

Committed same-sex couples who are legally married in their own states can now receive federal protections - like Social Security, veterans' benefits, health insurance and retirement savings.


Which is consistent with how I read the opinion.

The challenge comes in that the Supreme Court defined "in their own states" - well - to be kind - - they told us to pay no attention to the man behind the curtain, leaving it to be pulled aside by future litigants in future court cases. To be unkind - the conclusion they reached, while wonderful, is not legally supportable without declaring all of DOMA unconstitutional and mandating state recognition of interstate and international marriages. Hence the "man behind the curtain" routine.

Mixed gender foreign (meaning out of state) marriages are instantly recognized by the state of residence, as are originating state marriages when the couple moves elsewhere. The rule has been (since the Loving v. Virginia days) (1) is the marriage legally valid when and where it was created and (2) if the answer is yes, all other states must recognize it.

So nothing mattered except the validity where it was entered into (with some odd, very small exceptions). Until DOMA and all the mini-DOMAs and presumed analysis in states which had gender specific marriage laws. Those impacted #2.

For Edie Windsor. at the time of creation her marriage was legally valid in Canada when created - but at that moment - it was not recognized in New York. The moment of creation is the only time the Feds, through the states, ever look at to determine the validity of a marriage (NPR and the New York Times commentary notwithstanding).

The feds even go so far as to reach some very unusual results as a result of their position that nothing which happens later matters) One of those odd results is in the field of Federal taxes (which NPR and the New York times both said based on the status in the state of residence and/or sometime after the inception of the marriage). The IRS has quietly recognized (and has recognized for a couple of years) same gender marriages. A very small class of same gender marriages - those marriages which were mixed gender at the time of inception, but become same gender as the result of one spouse transitioning to the opposite gender. Their analysis hinges on nothing later changing the legal status of a marriage that was legal at its inception.

But - in sharp contrast - the evaluation of whether Edie Windsor was married hinged on an event which occurred after the date of her marriage - a change in marriage laws in New York. Something which generally has no power to change the legal status of any existing relationship.

And - the Supreme Court didn't say why it used this nearly unprecedented - and legally inconsistent review point, even if all we are looking at are IRS decisions. So until they clue us in (via future decisions) it is extremely hard to know which review point is the right one for any other situation.

Personally - I expected them to punt, since I've been wrestling with this paradox nearly since the case was filed. I couldn't make it work to give the win to the sympathetic plaintiff, in any legally coherent manner, except punting on standing, or declaring the entire thing unconstitutional. And I couldn't imagine the latter so I expected the former.

Instead they took the route of the man behind the curtain - which makes things really hard except for the status at a given moment in time when the couple lives in a state that recognizes their marriage - since the analysis they applied (evaluating the marriage at the moment the couple interacted with the IRS) seems to me also to mean they lose the federal rights the moment they move to a state which does not recognize their marriage - because the next time they interact with the IRS the feds will apply the same analysis with a different result.

But all the craziness their approach was guaranteed to create is probably a good thing, because I don't think there is any way for them not to continue the federal dismantling this decision started.

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Response to Ms. Toad (Reply #7)

Thu Jun 27, 2013, 10:22 PM

8. Thanks for the clarifications.

I am beginning to appreciate...well, that's the wrong word, and understand has broader implications...let's say, beginning to recognize the complexities and the myriad potentials for confusion.

Once again, thanks Ms.T for politely correcting my misunderstandings.

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Response to Amimnoch (Original post)

Thu Jun 27, 2013, 05:56 PM

2. Here's more information about military families...

... from U.S. News Post-DOMA: Gay Troops' Spouses Can Be Buried at Arlington:

The Defense Department does not, however, yet know how much these benefits will cost, how it will pay for them or whether they will all extend to service members in states that do not allow gay marriage.

"We will move very swiftly, expeditiously, on implementing the law," Defense Secretary Chuck Hagel said during a Wednesday afternoon press briefing. "We think it's the right decision."

When asked how much it will cost the department, currently roiled by budget cuts and sequestration, Hagel said, "we just received the decision. We are now of course exploring all the pieces."

<snip>

The department will immediately start updating the process for issuing identification cards for military members and their spouses in accordance with this shift in federal policy. This will take between six and 12 weeks, according to a Defense release.

Benefits that same-sex spouses will enjoy include medical, dental, and housing and also the right to be interred at Arlington National Cemetery in Virginia.

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Response to Amimnoch (Original post)

Thu Jun 27, 2013, 06:15 PM

3. I think the answer right now is "no one knows"

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Response to MNBrewer (Reply #3)

Thu Jun 27, 2013, 06:33 PM

5. very possible, but if anyone can answer i know it's going to be

some of the people that regularly post here. We have some here who are amazingly well red on legal issues.

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Response to MNBrewer (Reply #6)

Fri Jun 28, 2013, 03:29 AM

9. Good article, looks like I'll have to wait for things to settle

to find out just how far reaching some of our rights are now.

For my specific situation, My husband and I have been living as expat residents since 2006 in Brazil, and now Canada. I've avoided accepting any job positions that would return us back to the US specifically because of DOMA and losing our benefits of living abroad in countries that do recognize us.

The idea of being able to look at promotions that could return us is quite attractive,but not at the cost of making us second class citizens again.

Unfortunately our US operations is centered in Houston, TX. It's the only office that I'd be sent to in the US. So I'll definitely have to have a good understanding of the new rules.

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