Can President Obama Resolve Some of the Complexity That Will Arise after DOMA?

Gay Marriage Benefits Should Cross State Lines

I mentioned yesterday that there is confusion about whether gay couples who marry in one state but live in a state that does not recognize gay marriage will be able to maintain their federal benefits.

A colleague of mine, Jeffrey Marshall, wrote a post that explains the issues here in Pennsylvania, a state that is very hostile to gay marriage. As Jeff explains, in determining eligibility for benefits, including tax filing status, some agencies use a rule of residence. In other words, the location in which you live.

Both the IRS and Social Security use this residence rule to determine eligibility. So, currently, unless you live in a state with gay marriage, it is clear, you will not qualify to file your federal taxes as married, nor would you qualify for social security benefits based on marital status.

Executive Orders Can Help

However, there is a solution. These rules are determined by the agencies, not by law. And President Obama can change rules via executive order. The President has plainly stated that federal same-sex marriage benefits should cross state lines. He has further directed his administration to review all federal statutes related to federal marriage benefits so that he can do whatever is within his power to make certain that marriage benefits apply in states without gay marriage. As a result, we should see resolution to some, but not all, of the problems for couples that marry in one state but live in a state that does not recognize same-sex marriage.

For a variety of reasons, this is an extremely positive development.

First, it means that even though gay marriage is not currently available in 37 states, those who do marry in a state where same-sex marriage is legal will be able to carry their federal benefits with them wherever they go.

Second, as an attorney, I am very concerned at the level of complexity that will arise for people who desire to move from one state to another or to reside in a state without same-sex marriage. Tax issues, social security issues, estate planning concerns, each of these, and more, would have been made extremely difficult to manage without some kind of consistency. One of the reasons we have a full faith and credit clause in our Constitution is because we like consistency.

There is no doubt in my mind that any efforts to pass a law at the federal level to fix the legislation that needs to be changed would fail. Congress at this point seems unable to pass the most simple of legislation, and gay marriage is far from simple for many people. I would also expect hostile states to fight tooth and nail any chance they get, when they are involved in the administration of benefits.

If President Obama takes the steps to make certain that benefits apply regardless of state of residence, that will go a long way to helping resolve the complexity and unfairness same-sex married folks would otherwise experience in relation to their federal benefits.

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