According to this posting on The Volokh Conspiracy site referencing this article on BuzzFeed regarding how the Social Security Administration (SSA) plans to handle spousal benefits in the wake of the Supreme Court’s Defense of Marriage Act ruling:
the SSA has bucked the trend in other executive agencies of paying benefits to all couples whose marriage was validly celebrated. Instead, the SSA will pay benefits only to a couple whose home state (“domicile”) recognizes their marriage. …
SSA’s decision may well be required by 416(h)(1)(A)(i), and if so it is hard to criticize the administration. But the decision has the unfortunate effect of ensuring that same-sex couples will be married for some federal purposes and not for others.
Left uncertain, according to Volokh’s Will Baude, is whether same-sex couples in domestic partnership states such as New Jersey will be entitled to SSA spousal benefits.
Nevertheless, it’s pretty clear that in a post-DOMA world the federal benefits disparity between states that recognize same-sex marriage and those that don’t is going to make living in a marriage equality state, when practical, much more appealing to gay couples. And those who must remain in non-equal states due to career requirements or the need to care for elderly parents, for instance, will suffer the financial impact—unless and until state laws are changed or the courts rule otherwise.
15 Comments for “Separate and Unequal”
posted by Tom Scharbach on
Left unclear, according to the post’s author, Will Baude, is whether same-sex couples in domestic partnership states such as New Jersey will be entitled to SSA spousal benefits.
It isn’t particularly unclear.
Section 306 of the Social Security Handbook defines “spouse” as a surviving member of a couple who, under the laws of the state in which he/she is domiciled, (1) was validly married, or (2) have the status of a husband or a wife with respect to the taking of intestate personal property.
The “intestate personal property” rule was originally intended to cover common law marriage, but would seem to apply to marriage-equivalent civil unions. I suppose we will have to wait for a SSA administrative ruling (or court case) but it seems clear enough.
The SSA is not “bucking a trend” so much as following federal law, which uses state of domicile as the basis for determining who is and who is not married for social security purposes.
Federal law sometimes looks to state of formation to determine whether a couple is married or not, sometimes looks to the state of domicile, and sometimes is silent. Federal law is a mess in this regard, and we’ll see a lot more confusion before we are done.
Nevertheless, it’s pretty clear that in a post-DOMA world the federal benefits disparity between states that recognize same-sex marriage and those that don’t is going to make living in a marriage equality state, when practical, much more appealing to gay couples.
Yup. I live in one of those states, with a Republican Governor, Republican Senate, Republican Assembly, and 2010 redistricting that will ensure that the status quo remains until after the 2020 Census. If I weren’t sixth generation living on the family farm and very stubborn, Michael and would head to the Twin Cities and live in a state that didn’t resemble Alabama quite so closely.
posted by Houndentenor on
I guess this answers the question, “why aren’t civil unions good enough?” The recent court cases didn’t wrap up this issue. There are a lot of matters like this one that Congress needs to address, and if not Congress then the Courts.
As for where to live. Not everyone has a choice as to where to live. Many have family, work or other obligations that restrict their choices. It does, of course, make living in a pro-equality state even more attractive and I do intend to move back to such a state and out of this red state hell hole as soon as possible.
posted by Doug on
My guess is that prior to the Tea Party the GOP, even though they did not like the fact that DOMA was overturned, would work to correct the many inconsistencies that will be uncovered. Today the GOP is so radical, intransigent and nasty that they will not do this.
posted by Tom Scharbach on
The recent court cases didn’t wrap up this issue. There are a lot of matters like this one that Congress needs to address, and if not Congress then the Courts.
President Obama seems to be doing what he can to ensure that government agencies (the IRS, DOD, SSA and so on) interpret the Windsor case as broadly as possible with respect to marriage recognition, but the agencies can not, should not and almost certainly will not act contrary to the laws enacted by Congress.
Congress will do nothing to redress and/or rationalize the inconsistencies in federal law with respect to recognition of marriage. It is politically impossible given the makeup of the Congress.
So it will come down to the courts. We can expect a lot of litigation, most of it dealing with the details, before a Loving-equivalent decision.
I’m frustrated by that, of course, but I keep in mind that the piecemeal litigation serves and important purpose — each case, each decision will either (a) build the legal foundation for a Loving-equivalent decision, adding to the body of positive legal precedent, and/or (b) add to the inevitable conflict in law that will develop between the appellate jurisdictions, increasing the pressure on SCOTUS to issue a Loving-equivalent decision.
Two cautions: (1) while the Obama administration seems to be working to move federal agencies to the boundaries of the Windsor decision, a more conservative administration can work in the other direction; and (2) a Loving-equivalent decision is not inevitable, and a more conservative administration is as likely to appoint Scalia clones as not.
We’ve got to keep the pressure on, if for no other reason than that way too many people seem to think that we’ve won our case. We need to make sure that everybody (particularly pro-equality straights) understands that “separate but unequal” is still the law of the land, and that we have a long way to go.
posted by Wilberforce on
I love the assumption that tax benefits make living in a State ‘much more appealing.’ In my Universe, there are many factors that make WA State appealing, only one of which is marriage tax credits.
This shows again the narrow thinking on this site, where everything is about money. It makes me sad, remembering my father’s brand of well rounded, business conservatism, as opposed to the new crowd of social climbing simpletons. Yuckers.
posted by Tom Scharbach on
I do intend to move back to such a state and out of this red state hell hole as soon as possible.
I can’t remember whether it was General Sherman or General Sheridan who said “If I owned both Texas and Hell, I’d live in Hell and rent out Texas …”, but whenever I want to get Michael’s goat, I offer to move to his family’s stomping grounds in East Texas.
posted by Jorge on
Nothing marks progress so much as the one step forward, one step backward split.
posted by Clayton on
In three years I will be ready to retire, and my husband and I will clear out of the South once and for all. We want to live in a free state–I mean an equality state–as soon as it’s feasible.
posted by Kosh III on
“Yup. I live in one of those states, with a Republican Governor, Republican Senate, Republican Assembly, and 2010 redistricting that will ensure that the status quo remains until after the 2020 Census. If I weren’t sixth generation
Yep. Welcome to Tennessee.
My ancestors have been here since 1807 at least but the Fascist GOP insures that only rich white heterosexuals have rights and to hell with the rest of us. Fascist Pigs!
posted by Mike in Houston on
Under normal circumstances, this would be an easy administrative fix by attaching the SSA change to a budget authorization bill.
You easily have a majority in the Senate and would probably move forward in the House if it weren’t for the radical right wingers holding everything hostage to the Hastert Rule.
posted by Tom Scharbach on
Do you think it would stand a snowball’s chance of making it through the House. I don’t. The social conservatives would go nuts, since the issue involves recognition of marriage. Each and every Republican Congressman who voted for the bill would face a primary challenge, particularly the ones in “safe” (i.e. deep red) districts.
posted by Don on
I’m a bit of an optimist. The SS aspect is a huge chunk of $ for gay seniors. And they vote. And they have time on their hands if retired. If they get the checks and the benefits automatically no matter where they live, that takes a lot of fundraising and activism off the table. Democrats would love it. Plus, it forces the hand of gays not to be complacent and wait for a court to wave the wand and “poof!” you’re equal. MAKE THEM make you equal. I think its good for a democracy. Sure some will jump and say its cynical for Dems to make a good political move. But there is no play without “burn your house down” spiteful soc-cons. It is also something I think will help gay people enormously as a social benefit. With the exception of those who brandish a Bible for extreme political positions, polite people are increasingly uncomfortable with how bad a deal gay people have. And having it shoved in their face day in and day out “moves the needle” on fairness for us. Americans generally hate inequality, unfairness; and pull for the underdog to win. This is why soc-cons paint themselves as underdog victims even though they are the oppressors. You can’t win in the court of public opinion in this country if you’re the BIG trampling the SMALL. and they know it. It is precisely how Gandhi freed India from British rule. The public got to a point where it could no longer stomach the bully bashing the people striving for freedom. and they demanded parliament give it to them.
posted by Houndentenor on
I hope you are right. And I think this is true concerning younger people. But almost every senior I know is a Bible-thumping Glen Beck listener and they will be happy to vote against gays getting anything. In addition, this is a useful smokescreen for the Paul Ryan crowd who want to start dismantling social security and need a distraction.
posted by Don on
I meant gay seniors. but I didn’t make that clear. if they just get the check, nothing to do. but if they have to fight for it, they will.
posted by The Glenchrist Law Firm PLLC on
The “Social Security Handbook” does not have the force of law. It is merely an informational pamphlet.
There is nothing whatsoever in either the SSA or the IRC that prevents the Administration from immediately ordering that the Executive Branch use the state of celebration rather than the state of residency.