Some Federal Agencies Still Don't Recognize Same-Sex Marriages

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August 28, 2014 - Businessweek

After the U.S. Supreme Court repealed key parts of the Defense of Marriage Act last year, most federal agencies adopted “place of celebration” policies under which any marriage that was legally recognized in the state where it took place would also be recognized by federal authorities. The Internal Revenue Service allows gay couples to file joint tax returns, the Department of Defense extends spousal benefits to same-sex couples, and the Federal Bureau of Prisons grants equal visitation rights.

Yet there are a few federal agencies that still won’t recognize some same-sex marriages. They include the Department of Veterans Affairs, the Social Security Administration, and the Railroad Retirement Board. Each is bound by statutory language dating back decades requiring them to defer to state laws in determining who counts as married. In June, Attorney General Eric Holder wrote in a memo that congressional action is required to address the gap, but Democratic proposals to do so have stalled.

Now a group representing same-sex couples is suing the VA for its decision to continue denying spousal benefits to gay veterans unless the state where they lived when they wed or applied for benefits recognizes their marriages. The federal government should not be “giving the force of a federal prohibition [to] these state laws that are unconstitutional,” says Susan Sommer, who directs constitutional litigation for Lambda Legal and brought the lawsuit on Aug. 18 on behalf of the American Military Partner Association. Those benefits include pensions, government-backed loans, and disability pay.

A 1958 statute determines who counts as a veteran’s spouse according to “where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued.” In a June memo, the VA’s general counsel, Will Gunn, noted that this has been the standard for veterans’ benefits since 1882, when similar wording was written into a Civil War widows’ pension statute.

The Obama administration has already taken steps to address another problematic provision. A 1975 amendment to the 1958 law replaced gender-specific language such as “widow” and “woman” with “surviving spouse” and “person of the opposite sex.” In 2013, after the Supreme Court ruling, a district court judge in California enjoined the federal government, including the VA, from using that “opposite-sex” definition to deny benefits to same-sex couples in the state. Holder subsequently announced he would cease enforcement nationally.

Sommer also cites the Social Security Administration’s decision to stop automatically denying benefits to the children of unwed parents on the basis of state laws as precedent for the VA to disregard discriminatory language. “Courts started saying, ‘You don’t have to do that,’ ” Sommer says. “You should examine whether you think this statute, this underlying state statute, is constitutional or not.”

The VA isn’t commenting on the suit. “Generally speaking, you wouldn’t expect administrative agencies to get out in front of the courts in terms of saying, ‘This state law is unconstitutional, we’re going to disregard it,’ ” says Kermit Roosevelt, a professor of constitutional law at the University of Pennsylvania. Some believe the White House would likely welcome a court ruling allowing the federal government to disregard state bans on same-sex marriage. “I suspect that the Obama administration would not be in any way disappointed if they lose this lawsuit,” says attorney Roberta Kaplan, who argued against DOMA before the Supreme Court.

Sommer says she’s looking at bringing a similar case against the Social Security Administration. “I think the tides have turned,” she says. “We’re not going back to where we once were.”

The bottom line: The federal government recognizes same-sex marriage, but the VA and other agencies still defer to state laws.

Eidelson is a reporter for Bloomberg Businessweek in Washington.