With Section 3 of the defence of Marriage Act struck down by the Supreme Court, many same-sex married couples are about to have their marriages recognised by the federal government.
If you’re married to someone of the same sex and you live in one of the 13 states where gay marriage is or will soon be legal, the federal government will start treating you as married.
It’s not immediately clear how the ruling will affect same-sex couples married by one state but living in another that does not recognise gay marriage.
Federal recognition will mean a lot of new rights and responsibilities for gay married couples. 1,138 of them, in fact, according to a 2004 report from the General Accounting Office, updating this longer report from 1997.
Here are some of the specific changes that are coming for some gay marrieds. Some are important and some are merely interesting. They’re mostly positive, but not all of them are:
- Income taxes. Gay married couples will start filing joint federal income tax returns. In general, this will mean higher taxes for couples where both partners have similar incomes and lower taxes for those where one spouse earns much more than the other.
- Employer-provided health insurance. This is a tax free benefit when given to employees, their spouses, and their children. Under DOMA, same-sex couples had to pay income tax on spousal health benefits. Now, they won’t.
- Estate taxes. You don’t have to pay them when you inherit from your spouse. That’s what Edith Windsor, the plaintiff in the DOMA case, was suing over: She had to pay an estate tax bill over $360,000 on an inheritance from her late wife because the federal government didn’t recognise her marriage.
- Social Security retirement benefits. Social Security old-age benefits can be based, in part, on a current or former spouse’s income. Some retirees who are or have been gay married will now be eligible for higher benefits.
- Supplemental Security Income. Your eligibility for this disability program depends in part on your spouse’s income. Some gays and lesbians who would have previously qualified now won’t if a spouse has substantial income.
- Medicaid. This is a program run by states but partly funded by the federal government. Under federal law, states may consider a spouse’s income in determining eligibility, but not anyone else’s. Same-sex spouses will now count, which means some gays and lesbians will cease to qualify. This little noticed effect — gay marriage reduces the rate at which gays and lesbians become eligible for Medicaid and other public assistance programs — is the reason gay marriage has a small positive effect on state budgets.
- Federal housing assistance programs. Being married also affects your eligibility for these.
- NO effect on food stamps. Unusually among income support programs, the Supplemental Nutritional Assistance Program considers only “household” resources without regard to marriage, so there will be no effect on gays’ access.
- Federal protections against discrimination. Gays and lesbians are still not federally protected against discrimination based on sexual orientation in employment or public accommodations. But they will enjoy various rights against discrimination based on their marital status. GAO: “For example, such discrimination is prohibited in executive agencies, and is unlawful for a creditor in private financial transactions.”
- Benefits for spouses of federal employees. Before today’s decision, gay federal employees couldn’t get most spousal benefits. The biggest change here is in health insurance, but there are lots of other issues, from relocation allowances to who gets a deceased federal worker’s last paycheck. The extension of same-sex spousal benefits is especially important for military servicemembers, whose compensation is heavily weighted toward benefits (including housing allowances that depend on marital status) rather than salary.
- Conflict of interest. Spouses of some federal workers are barred from accepting certain gifts. If you’re gay married to a postal worker and you were hoping to accept a gift worth over $250 from a foreign government, you’re out of luck.
- Employee benefits for private workers. Many companies already gave benefits to same-sex spouses, but federal law still matters here. For example, COBRA continuation coverage for health insurance is available to employees and their spouses, but DOMA meant that same-sex spouses had no right to it. ERISA prohibits workers from waiving certain employee benefit rights without spousal approval.
- Coal miners, railroad workers, and public safety officers. Spouses of people in these occupations have rights to special benefits under federal law.
- labour relations. People who work for their spouses have no right to engage in collective bargaining under the National labour Relations Act. A gay man who hopes to organise a worker revolt against a spouse who is also his boss will now have to get to divorced first.
- Veterans’ benefits. “Husbands or wives of veterans have many rights and privileges by virtue of the marital relationship,” notes the GAO. These include death benefits, health benefits, preferences in federal employment, burial in military cemeteries, and more. So, that’s good news for same-sex spouses of veterans. On the other hand, a spouse’s income is counted in determining veterans’ eligibility for certain need-based benefits, so veterans whose same-sex spouses have significant income may lose benefits they are now eligible for.
- Immigration. This one is big. Marriage is an important factor for immigration eligibility: If you’re a foreigner with a work visa to come to the U.S., you can often bring your foreign spouse along, and if you marry an American, that usually makes you eligible to immigrate. Extending such rights to same-sex couples was a sticking point in negotiating a comprehensive immigration reform bill. Now, the federal government will recognise valid state marriages for immigration purposes and may also recognise foreign ones.
- Threats against spouses. You’d better not threaten the gay spouse of a federal official anymore, since that’s now a federal crime. Per the GAO: “Attempting to influence a United States official through threats directed at a spouse is a federal crime, as are killing, or attempting to kill, foreign officials or their spouses, or threatening to kill certain persons protected by the Secret Service, such as major presidential candidates and their spouses.”
- Federal education loans and grants. Your eligibility for these is determined in part based on your spouse’s income. Gay students whose spouses have significant income may lose benefits.
- Farm subsidies. The amount of subsidies that can be received by one “person” is limited, and a married couple is defined as a person. So, some gay married farmers (perhaps in Iowa) could lose out on subsidies.
- Native Americans. There are lots of federal laws pertaining specifically to the spouses of American Indians, including laws that govern non-Indian spouses’ rights to tribal property.
- Using your land after your spouse sells it to the government. GAO: “When the government purchases land for national battlefields, monuments, seashores, or parks, the law commonly allows those from whom the land is purchased and their spouses to continue to use and occupy it during their lifetimes.”
- Federal campaign matching funds. If you want to qualify for these, you and your close relatives must not spend more than $50,000 of personal assets on your campaign. Now, gays and lesbians won’t be able to use the loophole of having a same-sex spouse pay.
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