The question for Obama turns on whether the federal government should extend full benefits to gay couples living in states that don’t recognize their marriages.
Obama would face rare, concrete decisions on the politically combustible question of same-sex marriage — an area he has largely left to the purview of courts and state legislatures.
Advocates have pressed the issue of benefits with White House aides in recent months, according to people familiar with the discussions. The advocates have pushed for a uniform standard that would make the most benefits available to legally married couples across the board. Officials have not signaled what Obama would do.
“Equal protection means that every family should have access to the same protections they need regardless of state borders,” said Fred Sainz, a spokesman for the Human Rights Campaign, a leading gay rights advocacy group. “We’ll fight to make sure that all legally married gay couples can access the greatest number of federal benefits and protections.”
The Supreme Court could issue rulings as early as Monday on two significant marriage cases. One is expected to decide the fate of California’s voter-approved ban on same-sex marriage, which was overturned by lower courts.
Obama’s choices on federal benefits arise from the other case, in which the justices are expected to determine the constitutionality of a key provision of the 1996 Defense of Marriage Act that prohibited the federal government from making benefits available to same-sex couples.
The Obama administration filed a brief in that case arguing that the law was unconstitutional. The measure’s defense was championed by House Republicans, who hired Paul Clement, solicitor general under President George W. Bush, to argue that the bipartisan majorities in Congress that approved the law had the right to protect heterosexual marriage no matter what a handful of states might decide.
Obama’s potential dilemma stems from the fact that eligibility for some federal benefits — including Social Security payments to spouses and marital tax deductions — is determined based on the marriage laws of the states where the couples live and not where they were wed.
If the Supreme Court overturns the Defense of Marriage Act, full benefits would be available to same-sex couples who marry and live in the dozen states that legally recognize their relationships. But legally married gay couples that live in states that don’t recognize their marriages would be ineligible for a range of federal benefits.
Advocates say Obama could eliminate the discrepancy with an executive order or new regulations setting a couple’s “place of celebration” as the deciding factor in whether the U.S. government recognizes a marriage for the purposes of providing benefits.