More than a year after the Supreme Court ruling that allowed federal benefits for same-sex married couples, gays are still struggling for equality with three agencies.
Federal laws prevent the Department of Veterans Affairs, the Social Security Administration and the obscure Railroad Retirement Board from providing full benefits to gay couples who reside in states that don’t recognize their marriages.
After the Supreme Court’s ruling in U.S. v. Windsor, many federal agencies pledged to treat all couples equally, but the justices had already anticipated potential conflicts because of state laws.
In Windsor, the court struck down a section of the Defense of Marriage Act that defined marriage as only between a man and a woman for federal benefits purposes, but it did not address whether states have to recognize same-sex marriages performed outside of their own jurisdictions.
Justice Antonin Scalia said in his dissent that the decision could lead to practical problems: “Imagine a pair of women who marry in Albany and then move to Alabama, which does not ‘recognize as valid any marriage of parties of the same sex.’ . . . When the couple files their next federal tax return, may it be a joint one?”
That’s the type of situation playing out now with Air Force Capt. Carlos Wilkinson, who married his same-sex partner on July 27, 2013, a month and a day after the Windsor ruling. The couple married in California but now lives in Nevada, where gay marriage is not legal.
When Wilkinson and his husband, Wray, applied for a VA–backed home loan in 2013, the VA said it could guaranty only half the funds, due to Nevada’s marriage laws. If Wilkinson had filed as a single applicant or was in a heterosexual marriage, the VA would have backed the entire loan.
“They claim everything is still so new that they didn’t have correct guidance,” Wilkinson said. “I feel we deserve [full benefits], just like any other service members do.”
A section of U.S. code known as Title 38 requires the VA rely on a couple’s state of residence when making benefits decisions. Similar federal statutes apply to the Social Security Administration and the Railroad Retirement Board.
“These people are being discriminated against based on geography,” said Rep. Dina Titus (D-Nev.), who proposed legislation this year that would require equal treatment for all veterans and their spouses, regardless of their sexual orientation or where they live. “The veterans didn’t fight for a state, they fought for the United States. To be treated differently when it comes to benefits is nonsensical.”
The American Military Partners Association, an advocate for gay troops, filed a lawsuit against the VA this month over its interpretation of Title 38, arguing that it contradicts the Windsor decision and cuts off thousands of current and former service members from benefits they deserve.
“We simply cannot allow our nation’s veterans to continue to be denied the benefits they’ve earned simply because of the gender of their spouses,” said Stephen Peters, the group’s president.
Beyond the VA lawsuit, gay-rights advocates are using the Windsor case as a road map for overturning same-sex marriage bans across the country. Their efforts have been successful, with federal and state courts this year ruling that same-sex marriage bans in 15 states are unconstitutional.
Some of those rulings have been challenged, but New Jersey, New Mexico, Oregon and Pennsylvania have accepted the outcomes, and they now recognize same-sex marriage. (New Mexico never banned same-sex marriage, but the state had allowed counties to prohibit the unions until its supreme court decided all counties had to allow them.)
As for appeals, the Supreme Court could consider whether to accept cases from Virginia, Utah and Oklahoma for review as early as September, but there is no deadline for a decision. The high court in recent months has ordered holds on lower court decisions that required Virginia and Utah to begin issuing licenses for same-sex marriages.
As the appeals continue, same-sex couples throughout the nation are in limbo. In North Carolina, for example, Richard Jernigan is hoping for a spousal supplement through his retired husband’s Social Security benefits.
Jernigan inherited his mother’s house, but he said the home needs constant repairs and maintenance. He earns about $150 a month auditing customer service through a mystery shopper program. Social Security adds another $600 to the couple’s monthly income, but the amount could be about 25 percent higher with a spousal supplement.
“That money would be a tremendous help,” Jernigan said. “We are literally in a state of poverty, and yet we don’t qualify for any of the other assistance because they don’t count us as married.”
Several Democratic lawmakers have proposed legislation to prevent agencies from discriminating against same-sex couples, but none of the measures have moved out of committee.
In addition to Titus’s bill, Sen. Patty Murray (Wash.) and Rep. Ron Kind (Wisc.) have introduced legislation that would require the Social Security Administration to recognize same-sex marriages for benefits purposes. And Sen. Dianne Feinstein (Calif.), on the day of the Windsor decision, pitched a measure to repeal DOMA altogether.
Drew Hammill, a spokesman for House Minority Leader Nancy Pelosi (D-Calif.), said Congress must “press forward and pass the [Feinstein bill] in order to fully repeal this discriminatory law and ensure all married LGBT couples have equal rights regardless of where they live.”
Rep. Mike Michaud (D-Maine), ranking member of the House Veterans Affairs Committee, has backed the Titus bill, saying simply that “family is family.”
Congress has little chance of passing the Democratic bills in its current polarized state, leaving couples such as Wilkinson and Jernigan hoping for Democrats to win control of both chambers, or for the Supreme Court to consider an appeal and rule in their favor — perhaps their best chance at this juncture.