As Obama administration concludes DOMA ruling implementation, focus returns to Congress

Attorney General Eric Holder announced the completion of the administration’s implementation of last year’s U.S. Supreme Court decision striking down Section 3 of the Defense of Marriage Act in a memo to President Barack Obama Friday.

“I am pleased to report that agencies across the federal government have implemented the Windsor decision to treat married same-sex couples the same as married opposite-sex couples for the benefits and obligations for which marriage is relevant, to the greatest extent possible under the law,” Holder wrote.

The announcement comes nearly one year after the Supreme Court found the federal government’s definition of marriage as between a man and a woman under DOMA unconstitutional in U.S. v. Windsor. On June 26, the same day as that decision was handed down, Obama instructed the Justice Department to work with members of his cabinet to ensure the decision was implemented swiftly and broadly across the federal government.

“The implementation of the Windsor decision across the entire federal government is an accomplishment that reflects countless hours of hard work, cooperation, and coordination across agencies,” Holder continued. “As additional issues arise, we will continue to work together to uphold this Administration’s fundamental commitment to equal treatment for all Americans, and to extend this fundamental equality to all Americans.” 

The same day the Justice Department signaled their completion of the review of the DOMA decision, the Labor Department announced it is proposing a rule change to the Family and Medical Leave Act (FMLA) clarifying that employees are eligible for leave to care for a same-sex spouse, regardless of whether they live in a state that recognizes same-sex marriage.

“The basic promise of the FMLA is that no one should have to choose between succeeding at work and being a loving family caregiver,” Labor Secretary Thomas Perez said in a statement. “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.”

According to the Labor Department, the proposed rule change would update FMLA’s definition of spouse to include all legally married same-sex couples, not just those who reside in a marriage-equality state.

But as the implementation of the DOMA decision concludes, with agencies and departments across the federal government implementing the ruling broadly, some instances of inequality remain.

“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 told Metro Weekly. “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 so-called ‘place of celebration’ standard that we have been able to apply in almost all cases.”

Both the Social Security Administration and the Department of Veterans Affairs announced Friday additional steps to extend some additional benefits, but there are remaining legal restrictions that can only be resolved by Congress. The Social Security Administration stated that new instructions will allow the agency to begin processing many claims in states that do not recognize same-sex marriage. Veterans Affairs announced Friday that all claims and applications involving same-sex marriages that were previously being held by the program offices are now being processed. Included in Holder’s report was the announcement that same-sex couples will be allowed to be buried together in a national cemetery.  The Social Security Administration will also begin extending survivor benefits, lump sum death benefits and aged spouse benefits to same-sex couples if one partner is eligible to inherit from the other partner under state law, including couples in civil unions or domestic partnerships from states such as Colorado, Nevada and Wisconsin. 

However, the Obama administration’s legal interpretation of the “place of domicile” rule prohibits the Social Security Administration and the Department of Veterans Affairs from adopting a place of celebration rule for certain programs and must instead confer benefits based on the laws of the state where a married same-sex couple lives. Due to those restrictions, both Holder and the White House are renewing their call for Congress to pass legislation that would correct areas of federal law that continue to prevent the extension of benefits.

“The Administration is calling for legislation to fix those provisions that prohibit legally married same-sex couples from enjoying the federal benefits they are entitled to,” the White House official said. “Examples of existing legislation that would help fix this problem include the Respect for Marriage bills introduced by Senator Dianne Feinstein and Congressman Jerrold Nadler, the Social Security and Marriage Equality Act introduced by Senators Mark Udall and Patty Murray, and the Veterans Affairs’ amendment proposed by Senators Mark Udall and Jeanne Shaheen earlier this year.”

According to Holder, the Justice Department “will work closely with Congress to ensure that veterans and elderly and disable Americans can obtain for themselves or their spouses the essential benefits they have earned no matter where they live.”

With a focus now shifting to Capitol Hill, Holder’s report outlining remaining discrepancies in federal law “should serve as a clarion call for Congress to finish the job,” said Human Rights Campaign President Chad Griffin.

In a statement, Rep. Jerrold Nadler (D-N.Y.), author of the Respect for Marriage Act, which is the most sweeping of the bills backed by the Obama administration and would repeal DOMA in its entirety, said Congress must act quickly to correct sections of federal code where injustices remain.

“This bill ensures repeal of section 2 of DOMA, which was not at issue in the Windsor case and purports to excuse the states from even considering whether to honor the marriage of a gay and lesbian couple performed by a sister state. The bill also provides a uniform rule for recognizing couples under federal law, ensuring that all lawfully married couples will be recognized under federal law, no matter where they live,” Nadler said. “I applaud President Obama in working to create a more equal nation and stand with him in his call to pass the Respect for Marriage Act. We still have much more to do in the fight for LGBT equality.”

Read Holder’s memo to Obama:

Holder Memo to Obama on Windsor Implementation