Further proof of the need for the Supreme Court to rule that state same-sex marriage bans are a violation of the equal protection clause of the U.S. Constitution came via a Friday announcement from the Social Security Administration. “Social Security has published new instructions that allow the agency to process more claims in which entitlement or eligibility is affected by a same-sex relationship,” the federal retiree agency said. Unfortunately, “the Social Security Act requires the agency to follow state law in Social Security cases.”
When the Supreme Court invalidated the so-called Defense of Marriage Act (DOMA), federal agencies set about making their policies reflect the new reality. That is, ensuring that legally married same-sex couples were being treated equally under the law. In addition, Attorney General Eric Holder issued a memorandum last February announcing that “same-sex marriages, valid in the jurisdiction where the marriage was celebrated” would be viewed as legal under federal law. Except if that law is the Social Security Act.
“As with previous same-sex marriage policies, we worked closely with the Department of Justice,” said Carolyn W. Colvin, acting commissioner of Social Security. “We are bound by the law within the Social Security Act, and we have to respect state laws.” Last month, I told you about a bill sponsored by Sens. Patty Murray (D-Wash.) and Mark Udall (D-Colo.) that would “confer spousal benefits to any individual legally married in United States.” It would also “eliminate the requirement that the spouse reside in a state that recognizes same-sex marriage in order to be eligible for Social Security benefits.”
Given Capitol gridlock, I placed great hope in the agency’s ability to make things right for legally married same-sex couples. That the Justice Department could not find a legal way for the Social Security Administration to use the demise of DOMA to treat all Americans “fairly and equally, with the dignity and respect they deserve,” as Colvin said last year, means the law needs to be changed. That’s not an easy task when the prognosis of passage of the Murray-Udall bill from Govtrack.us is “0% chance of being enacted.” That’s why the Supreme Court must act. Until marriage equality is legal nationwide, legally married same-sex couples won’t be able to avail themselves of the benefits they deserve without impediment.
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