First a recap:
Section 3 of DOMA prohibits the federal government from recognizing same-sex marriages. The entire law is just over a page long. The relevant part says that for federal purposes “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.’’
That means federal employees in same-sex marriages are discriminated against because of the sex of their spouse. That can take a heavy and unfair financial toll on a marriage in the form of additional health-care payments and lost retirement benefits.
There’s also the damage to couples’ dignity, for which there is no price tag.
The law is short on words but long on the hurt it has caused.
If the court upholds DOMA, as the House Republican leadership has asked it to do, discrimination will continue. Overturning DOMA will be followed by cheers of celebration by those who believe in full human rights for all and also questions about its implementation. The office of House Speaker John A. Boehner (R-Ohio) had no comment.
“It’s premature to speculate on what happens after a Supreme Court decision when we don’t have a decision,” said Fred Sainz, a vice president of the Human Rights Campaign, a gay rights organization. “When a decision comes down, the administration has said they will implement any Supreme Court ruling in compliance with the law, and we have every reason to believe that’s what they’ll do. President Obama has a record of advancing equality for gay and lesbian Americans, and we have confidence the president will move to protect our families.”
The Obama administration, however, would have a choice on how broadly to interpret a court decision to overturn DOMA, as reported last week by my colleague Peter Wallsten in The Washington Post and by the New York Times.
The question hinges on the “state of celebration” and the state of residence.
Federal employees living in the 12 states and the District where same-sex marriages are legal would get full spousal benefits immediately if DOMA is overturned. But it’s not clear what that decision would mean for those who were legally married in one place, D.C. or Maryland for example, but now live in a place without marriage equality, like Virginia.
“It would make sense that these same-sex spouses would, in the absence of DOMA Section 3, be entitled to employment benefits on the same terms as all other married federal employees. It also makes sense that the federal government, as an employer, would treat all of its employees the same across its entire workforce,” said Gary Buseck, legal director of Gay Lesbian Advocates and Defenders (GLAD) in Boston.
If the administration were to use the state-of-celebration standard, what would count would be where the couple was married, not resides. Use of the state-of-residence standard would result in some crazy contradictions. Federal employees married, living and working in the District or Silver Spring to same-sex partners, for example, would have full spousal benefits, while a similar worker a cubicle away who lives in Alexandria would be denied some of those benefits.
“For a number of important benefits, like spousal health coverage, there is no statute or regulation posing a barrier for civilian federal employees to be recognized as married by the federal government if the couple entered into a valid marriage, even if they live in a state that disrespects the marriage,” said Susan Sommer, senior counsel and director of constitutional litigation for Lambda Legal, which has fought against DOMA.
There could be some obstacles for retirement benefits based on the place of residence, she added, but “the federal government has a long history of navigating these kinds of issues. The Obama administration has made very clear its commitment to treating married same-sex couples with equality for federal government purposes.”
At a reception last week for Lesbian, Gay, Bisexual and Transgender Pride Month, Obama did not mention the coming DOMA decision directly, but he did say, “We’re reaching a turning point. We’ve become not just more accepting; we’ve become more loving, as a country and as a people. Hearts and minds change with time. Laws do, too.”
He added: “And as I said in my inaugural address, if we truly are created equal, then surely the love we commit to one another must be equal as well.”
If DOMA falls, he’ll be able to apply that to benefits for federal employees, no matter where they live and to whom they said “I do.”
Previous columns by Joe Davidson are available at wapo.st/JoeDavidson.