The process that determines the fate of the legal recognition of same-sex marriage is set in motion. The High Court heard oral arguments in April and rendered a decision on June 26, 2015. The Supreme Court decided that freedom to marry a person of one’s choice is a constitutional right. Prior to this ruling, both proponents and opponents of same-sex marriage agree that the Supreme Court has set the stage for a potentially historic ruling. According to Sherman (2015):

Proponents of same-sex marriage said they expect the high court to settle the matter once and for all with a decision that invalidates state provisions that define marriage as between a man and a woman. On the other side of the issue, advocates for traditional marriage want the court to let the political process play out, rather than have judges order states to allow same-sex couples to marry. (p. 1)

The ruling on the constitutionality of same-sex marriage marks the fourth time in 27 years that the court will be weighed in on major gay rights issues. Its first ruling occurred in 1986 when the court upheld Georgia’s anti-sodomy law. The most recent decision was in 2013 when it struck down part of DOMA in a decision that has paved the way for lower court rulings across the country in favor of same-sex marriage rights (Sherman).

The Supreme Court accepted cases from Michigan, Ohio, Kentucky, and Tennessee, in which restrictions about same-sex marriage were upheld by a Cincinnati, Ohio, Appeals Court on November of 2014. The parties on each side of the debate addressed two questions: (1) whether the Constitution requires states to issue marriage licenses to same-sex couples, and (2) whether states must recognize same-sex marriages performed in other states in which they are legal (Barnes 2015).

In 1996, President Clinton signed DOMA into law. Two significant parts of DOMA are of interest to our discussion in this chapter. The first is Section 3 of DOMA, which prevented the federal government from recognizing any marriages between gay or lesbian couples for the purpose of federal laws or programs, even if those couples were considered legally married by their home state. The second is that individual states do not have to recognize the relationships of gay and lesbian couples who were legally married in another state. Although the Supreme Court stuck down Section 3, it did not challenge Section 2 of DOMA, which declares that all states and territories have the right to deny recognition of any marriage of same-sex couples that originated in states where they are legally recognized (GLAAD 2015). The Supreme Court’s ruling in Windsor applies only to the federal government. See Policy Box 36.1.

Similar to the ongoing debate around same-sex marriage in the USA, Canada legalized same-sex marriage nationwide in 2005, making it the fourth county in the world and the first outside Europe to do so. In Halpern v. Canada, the Ontario Court of Appeal concluded that the traditional definition of marriage unconstitutionally violated persons’ Charter right to equality. The Civil Marriage Act provided a gender-neutral definition. The legal definition of marriage under the Act is, “Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.” In addition, the Act extended full legal benefits and obligations of marriage to same-sex couples as received by married different-sex couples under Canada’s business corporation and cooperative laws, and with regard to veterans’ benefits, divorce, and income taxes (http://​www.​mapleleafweb.​com/​features/​same-sex-marriage-canda#civil). Most legal benefits commonly associated with marriage had been extended to cohabitating same-sex couples since 1999 (http://​www.​nytimes.​com/​2005/​06/​29/​world/​americas/​29iht-web.​0629canada.​html?​_​r=​0).

The repeal of DOMA has substantial implications for families concerning a number of different federal rights that provide necessary marital benefits. Several marital benefits now granted to same-sex couples in legal marriages include social security benefits, multiple tax categories, military family benefits, healthcare benefits, political contribution laws, rights to creative and intellectual property, and hospital visitation and decision-making rights. GLAAD (2015) noted that couples married in a state where marriage equality is legal, but who are living in a state where it is not may have a more difficult time receiving benefits. In addition, the federal government’s recognition of benefits under DOMA will allow binational couples to sponsor foreign-born spouses for US residency. For example, individuals who are legally married have begun to receive green cards following the High Court decision on DOMA (GLAAD).

In the USA, marriage confers 1138 rights, protections, and benefits in federal law that both are legal and practical (Human Rights Campaign n.d.). Generally, society considers that the spouse is the most privileged party, an important factor in making medical decisions or receiving benefits on behalf of a spouse, or executing rights that would otherwise require a power of attorney or similar legal document. Marriage also gives the right to sue on behalf of a spouse (http://​www.​myfamilylaw.​com/​library/​legal-rights-and-benefits-of-marriage/​?​more=​yes). Regardless of age, those rights are conferred upon different-sex married couples in the USA. With the repeal of DOMA, federal benefits emanating from federal law are extended to same-sex couples. Below, we discuss several key marital benefits now extended to same-sex couples. We stress that this information is not intended to be legal advice or legal opinion, nor is it inclusive of all aspects. Most of the information below is either summarized or verbatim from the Human Rights Campaign (n.d.) fact sheet series, After DOMA: What it Means for You.

Federal Taxes. The federal government has a growing list of Code provisions tied to marital status and the impact of marriage on personal taxes. It is important to understand that every couple’s situation is unique and may change from year to year. With the invalidation of DOMA , the following are a few tax issues that may affect married same-sex couples. For filing status (i.e., single, head of household, married filing jointly, married filing separately), only married couples can file as married, whether jointly or separately. Filing status is determined on the last day of the year. For example, persons who are married on the last day of the year are considered married for the entire year. It is believed that the Internal Revenue Service (IRS) will instruct married same-sex couples to file income taxes as married, whether jointly or separately. If the individual is considered married in his or her state of permanent residence, that practice seems to suggest that only people in states that license or recognize marriages of same-sex couples and in the D.C. can expect to be treated as married by the IRS. However, the IRS does not always follow this practice; for example, the IRS recognizes “common law” marriages for federal tax purposes no matter where a couple resides as long as their marriage was valid where entered (http://​hrc-assets.​s3-website-us-east-1.​amazonaws.​com/​files/​assets/​resources/​Post-DOMA_​FSS_​Federal-Taxes_​v3.​pdf).

Social Security. Although the Social Security Administration (SSA) has yet to issue specific guidance on eligibility for benefits for same-sex couples nationwide, including eligibility depending on whether persons live in a state that bars marriages, a state with some alternative status such as civil unions, domestic partnerships, or designated beneficiaries, or living in a marriage state, SSA should still accept an application for benefits, while these determinations are being made. Nevertheless, in 2013, the SSA announced that it was processing some retirement spousal claims for same-sex couples (http:///hrc-assets.s3-website-us-east-1.amizonaws.com/files/assets/resources/Post-DOMA_FSS_Federal_Social-Security_v3.pdf). Additional information from SSA about benefits for same-sex couples and family members is available at http://​ssa.​gov/​doma/​.

Supplemental Security Income (SSI). The SSI programs pay cash benefits to people who are at least age 65 and meet financial limits or have severe disabilities and very limited income and resources (www.​ssa.​gov/​pgm/​ssi.​htm). It is more difficult for a married couple living together to qualify for SSI than when not living together. A married couple (both age 65 years or older) living together who meets the Social Security Act disability standard must apply for SSI as a couple. For married couples living together, with only one spouse meeting the age of disability standard, the qualifying spouse must apply as an individual. However, the income and resources of the ineligible spouse will be considered (i.e., deemed) to constitute the income and resource of the spouse applying for SSI as stipulated by a formula set forth in SSI regulations. Marital status is based under the statute on “appropriate state law,” and regulations further specify that the law of the state where the couple principally lives (i.e., domicile) at the time of application should apply. Under additional statutory provisions, even if the marriage is not recognized by the state where the couple lives, the couple will nevertheless be considered married for SSI purposes if a spouse can inherit personal property from the other without a will under the state’s law as would a spouse (http://​hrc-assets.​s3-website-us-east-1.​amazonaws.​com/​files/​assets/​resources/​Post-DOMA_​SSI_​v2.​pdf).

A married same-sex couple living in a state that respects the marriage will be regarded as married for SSI purposes, and the income and resources of both spouses will be taken into account to determine SSI eligibility and benefits. It is uncertain what this means for married same-sex couples who live in a state that does not recognize their marriage. The couple would not be regarded as married under the law of their state of domicile. However, it is possible that the couple could be construed as “holding themselves out” as married to the community and hence subject to the rules for married couples for federal SSI purposes. A section of the Social Security Act provides that, even if there is no recognized marital relationship, if two individuals hold themselves out as “husband and wife” to the community in which they reside, they will be regarded as a married couple for SSI eligibility purposes. Efforts may be made in non-recognition states to apply this “holding out” provision to same-sex partners in evaluating eligibility for SSI (http://​hrc-assets.​s3-website-us-east-1.​amazonaws.​com/​files/​assets/​resources/​Post-DOMA_​ssI_​v2.​pdf).

Medicaid. Medicaid is a federal-state health insurance program targeted for very low-income people who meet certain guidelines. Medicaid also provides insurance coverage for long-term care for persons who qualify. Each state has it own Medicaid program that is partially funded by the federal government. Although there are some federal requirements that states must follow, each state has different rules about who qualifies for Medicaid and what is covered. The Affordable Care Act (ACA) made Medicaid available to all very low-income people regardless of whether they have a child, a disability, or are elderly; however, under the recent Supreme Court ruling about ACA, not every state has to expand Medicaid under the law. In states that choose not to expand Medicaid, the old eligibility rules will still apply. Many states that have marriage equality did not treat same-sex married couples as married for many Medicaid programs. Given that the Medicaid program is limited to very low-income people, who is considered to be a family member for the purposes of determining family income and assets impact eligibility for Medicaid (http://​hrc-assets.​s3-website-us-east-1.​amazonaws.​com/​files/​assets/​resources/​Post-DOMA_​MEDICAID_​v3.​pdf). Additional information is available at www.​helthcare.​gov or www.​medicaid.​gov.

Medicare Spousal Protections. Medicare is a federal health insurance program for adults aged 65 and older, as well as for certain younger people with disabilities. Medicare has four parts: (a) Part A, hospital insurance; (b) Part B, medical insurance; (c) Part C, Medicare Advantage Plans, which are private health plans that contract with Medicare to provide both Part A and Part B benefits; and (d) Part D, prescription drug coverage. For most people, becoming eligible for Medicare is as simple as turning 65 years old, but other aspects of the program, such as requirements and amounts of premiums, eligibility for certain types of plans, and timing of enrollment, may depend on work history, access to other health care, health status, and income. In several situations, having a spouse may alter the way benefits are accessed. Additional information is available at www.​medicare.​gov or www.​ssa.​gov/​pgm/​medicare.​htm.