Today, the Obama administration is rolling out another huge expansion of federal marriage benefits available to same-sex couples, in its ongoing effort to implement last year's landmark Windsor decision as broadly as possible.
The New York Times reports:
The federal government on Friday will extend a wide range of marriage benefits to same-sex couples, making good on a promise by President Obama after the Supreme Court struck down the Defense of Marriage Act last year.
On Friday, the Department of Labor will clarify that federal employees will be able to take leave from their jobs to care for a same-sex spouse, something that has long been limited to heterosexual married couples...
The action is important, officials said, because of differences in how states treat same-sex marriage. Without the regulatory changes, gay couples could be blocked from receiving federal benefits in states that do not recognize their marriages. Same-sex marriage is legal in 19 states and the District of Columbia.
"In almost all instances, federal benefits and obligations for same-sex married couples will be provided, regardless of where the couple lives," a White House official said late Thursday before the agencies' formal announcements.
Indeed, this morning Labor Secretary Thomas Perez announced a proposed rule extending the protections of the Family Medical Leave Act to all FMLA-eligible employees in legal same-sex marriages, whether or not they live in a state that currently acknowledges their marriage. The rule would change the FMLA's definition of the word "spouse" and apply a state of celebration standard of recognition, rather than the state of residency standard that is currently in place.
"The basic promise of the FMLA is that no one should have to choose between succeeding at work and being a loving family caregiver," said Secretary Perez in a statement provided by the Labor Department. "Under the proposed revisions, the FMLA will be applied to all families equally, enabling individuals in same-sex marriages to fully exercise their rights and fulfill their responsibilities to their families."
Also this morning, the Justice Department announced the completion of its promise to review relevant federal statutes and ensure the widest possible implementation of the Windsor decision.
More details, after the break.
A White House official told The Bilerico Project that the Justice Department review found that federal benefits and obligations will be provided to same-sex couples "in almost all instances."
The results of the DOJ review are contained in a memo from Attorney General Eric Holder to President Barack Obama. Scroll down to read the full memorandum.
"There are a handful of provisions under current law that preclude the federal government from extending benefits to legally married couples regardless of where they currently live," the official said, adding that the administration is calling on Congress to fix those provisions (through bills like the Social Security and Marriage Equality Act and the Respect for Marriage bills) so that all legally married same-sex couples can access the full range of federal marriage benefits.
BuzzFeed's Chris Geidner writes that the Justice Department's announcement essentially states that "it has done all it can to recognize same-sex couples' marriages."
The two primary areas where congressional action is required are in Social Security and Veterans' Affairs. Geidner reports:
For instance, if a person married to someone of the same sex applies for Social Security benefits and moves from a state where the marriage is legal to a state that does not recognize the marriage, the Social Security Administration (SSA) is announcing it will not reassess the person's eligibility status. The VA, for its part, will now allow same-sex couples in a "committed relationship" to be eligible for burial in VA cemeteries.
The Social Security Administration this morning announced a limited expansion of benefits within the scope of the Social Security Act. The statement provided to the press makes clear that SSA's hands are tied by this restrictive federal law:
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...
This latest policy development lets the agency recognize some non-marital legal relationships as marriages for determining entitlement to benefits. These instructions also allow Social Security to begin processing many claims in states that do not recognize same-sex marriages or non-marital legal relationships. We have consulted with the Department of Justice and determined that the Social Security Act requires the agency to follow state law in Social Security cases. The new policy also addresses Supplemental Security Income claims based on same-sex relationships.
"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. We remain committed to treating all Americans fairly, with dignity, and respect."
The VA released a similar statement, reiterating its commitment to equal treatment for all veterans and their spouses, but noting that current law prevented the department from fulfilling that commitment. Here's the full VA statement:
After close consultation with the Department of Justice (DOJ), the Department of Veterans Affairs (VA) is providing guidance to same-sex married couples on the benefits and services to which they are entitled under current laws and regulations.
"VA worked closely with DOJ to develop guidance to process cases involving same-sex marriages and to implement necessary changes swiftly and smoothly in order to deliver the best services to all eligible Veterans," said Acting Secretary of Veterans Affairs Sloan D. Gibson.
The U.S. Supreme Court overturned section 3 of the Defense of Marriage Act (DOMA), which governed the definitions of "marriage" and "spouse" for all federal agencies. However, there remain certain provisions of federal law governing Veterans' benefits and services that, like DOMA, define a spouse as a member of the opposite sex. In September 2013, the U.S. Attorney General announced President Obama's directive to cease enforcement of those VA-specific definitional provisions.
However, another provision of the law governing VA - 38 U.S.C. § 103(c) - requires the Department to look to the place of residency rather than the place of celebration to determine whether a Veteran's marriage is recognized for the purposes of VA benefits. This statutory requirement to look at the laws governing marriage in the place where the Veteran or Veteran's spouse resided at the time of the marriage or at the time they filed their claim or application precludes VA from recognizing certain same-sex marriages, such as when a couple has never lived in a state that recognizes same-sex marriages. VA has worked with DOJ to develop guidance to process claims and applications for same-sex married couples while still following the statutory requirement to look to the place of residency.
VA is committed to treating all Veterans and their spouses as equally as possible under the law. Since the Windsor decision, VA has worked with DOJ to develop guidance to process claims and applications for same-sex married couples while still following the statutory requirement to look to the place of residency. Importantly, the administrations within VA will aim to apply the same level of scrutiny to all Veterans' marriages, regardless of whether it is a same-sex or opposite-sex marriage. VA will therefore process claims and applications involving same-sex marriage in the same manner that VA processes claims based on opposite-sex marriage without any additional scrutiny or development. This means generally that VA will accept a claimant or applicant's assertion that he or she is married as sufficient evidence to establish a Veteran's marriage for the purpose of VA benefits. VA has made efforts to ensure that claimants will not be negatively impacted as a result of the time that has passed while developing this guidance.
VA is now processing all claims and applications involving same-sex marriages that were previously being held by the program offices. VA launched a new website and is continuing to update forms to inform Veterans and beneficiaries of the recent changes in the law and procedures. The new website provides important information to help Veterans and beneficiaries understand the eligibility requirements under federal law and VA regulations, and answers frequently asked questions.
"Our commitment to provide all eligible Veterans and their families with their earned care and benefits will continue to be our focus as VA begins recognizing same-sex marriages to the extent the law will allow." Gibson said. "We will work with lawmakers to address the changes that are necessary to allow all veterans and their families to access the benefits they have earned and deserve."
So now it's time to turn up the pressure on Congress to put politics aside and do the right thing for LGBT Americans and our families. As President Obama said earlier this week, they need to start working again.
AG Holder's Memo to President Obama on Windsor
Memo from AG Holder to President Obama Re: Windsor by JohnMBecker