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Gay marriage supporter Vin Testa waves a rainbow flag in anticipation of U.S. Supreme Court rulings in the cases against California's gay marriage ban known as Prop 8 and the 1996 federal Defense of Marriage Act (DOMA), outside the court building in Washington, June 24, 2013. The court did not release its rulings on either case Monday. Picture taken with fish-eye lens. REUTERS/Jonathan Ernst    (UNITED STATES - Tags: POLITICS CRIME LAW) - RTX10ZCW
There are lot of good reasons for marriage equality to be federalized at this point, but among the most compelling legal arguments is that the patchwork of equality in the U.S. now is creating confusion and hardship for thousands of couples. That's because three federal programs, the Department of Veterans Affairs, the Social Security Administration and the Railroad Retirement Board all interpret a section of U.S. code known as Title 38 to rely on a couple’s state of residence when making benefits decisions. If a couple is married in one state, but resides in another that doesn't recognize that marriage, the marriage doesn't exist in the eyes of these agencies.

Here's some examples of what can happen because of that.

Air Force Capt. Carlos Wilkinson, who married his same-sex partner on July 27, 2013, a month and a day after the Windsor ruling. The couple married in California but now lives in Nevada, where gay marriage is not legal.

When Wilkinson and his husband, Wray, applied for a VA backed home loan in 2013, the VA said it could guaranty only half the funds, due to Nevada’s marriage laws. If Wilkinson had filed as a single applicant or was in a heterosexual marriage, the VA would have backed the entire loan. […]

In North Carolina, for example, Richard Jernigan is hoping for a spousal supplement through his retired husband’s Social Security benefits.

Jernigan inherited his mother’s house, but he said the home needs constant repairs and maintenance. He earns about $150 a month auditing customer service through a mystery shopper program. Social Security adds another $600 to the couple’s monthly income, but the amount could be about 25 percent higher with a spousal supplement.

“That money would be a tremendous help,” Jernigan said. “We are literally in a state of poverty, and yet we don’t qualify for any of the other assistance because they don’t count us as married.”

A number of bills have been introduced in the House and Senate—all from Democrats—to rectify this federal discrimination, discrimination presumably struck down by the Supreme Court when it struck down a section of the Defense of Marriage Act defining marriage as only between a man and a woman for federal benefits purposes in the Windsor case. But since the Court didn't rule on whether states have to recognize marriages from other states. The Court is going to have to ultimately decide this one, since there's no way a broken Congress will deal with it any time soon. But this ongoing disparity under the lawmakers for an even more compelling case for all of the challenges winding their way to the Supreme Court.

Originally posted to Joan McCarter on Mon Aug 25, 2014 at 02:58 PM PDT.

Also republished by Kossacks for Marriage Equality and Daily Kos.

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Comment Preferences

  •  Tip Jar (39+ / 0-)

    "The NSA’s capability at any time could be turned around on the American people, and no American would have any privacy left, such is the capability to monitor everything. [...] There would be no place to hide."--Frank Church

    by Joan McCarter on Mon Aug 25, 2014 at 02:58:13 PM PDT

  •  The immorality of this is just astounding. (10+ / 0-)

    It's evil.

    "To take another person's life from the bench is no better than to take another person's life from the street"

    by commonmass on Mon Aug 25, 2014 at 03:21:39 PM PDT

    •  Immorality. (2+ / 0-)
      Recommended by:
      commonmass, shyewoods

      They eat it for breakfast, lunch, and dinner.
      Then they share an evil for dessert.

      They're white, they're right, they're overwhelmingly male, and God has ordained them to run the world. Or, at least, the United States.

      They would prefer not to be challenged on that, but if you try, be prepared. They will show no mercy.

      "I think in America, the opposite of poverty is justice." Bryan Stevenson

      by gfre on Mon Aug 25, 2014 at 03:30:22 PM PDT

      [ Parent ]

  •  Given the speed of Congress I think we're going (4+ / 0-)

    to see the SCOTUS deal with this first. We all know that the "full faith and credit" clause is going to be put to the test and once a majority of the states recognize gay marriage they're all going to have to. They might hold out on letting gays marry in their state but they won't be able to deny the married status from another state.

    GOP 2014 strategy -- Hire clowns, elephants, and a ringmaster and say "a media circus" has emerged and blame Democrats for lack of progress. Have pundits agree that "both sides are to blame" and hope the public will stay home on election day.

    by ontheleftcoast on Mon Aug 25, 2014 at 03:24:08 PM PDT

  •  One of the primary obligations of Congress (3+ / 0-)
    Recommended by:
    sfbob, d3clark, NoBlueSkies

    is to manage the currency. That doesn't mean deprive some people of currency and slather others with more than they can use. But, that's exactly what is happening . Congress is rationing dollars to advantage themselves --I.e. Keep themselves in office. In some cases they do it indirectly by favoring employers who deliver the votes and penalizing unions whose members vote "wrong."
    That's why the myth that there's not enough money, something we now create with strokes on the computer, has to be maintained. Both the sequester and the federal shutdown were designed to reinforce that lie. Because, if there is not a shortage of money, then Congress has just been the citizenry around.

  •  For us terminal-obsessives (4+ / 0-)

    When it comes to Social Security survivor benefits the governing regulation appears to be 20 CFR 404.345 (for the benefit of non-government types, that means Section 404.345 of Title 20 which covers employees benefits, though a similar definition likely appears in Title 38 which governs the VA and VA benefits). It reads as follows:

    To decide your relationship as the insured’s wife or husband, we look to the laws of the State where the insured had a permanent home when you applied for wife’s or husband’s benefits. To decide your relationship as the insured’s widow or widower, we look to the laws of the State where the insured had a permanent home when he or she died. If the insured’s permanent home is not or was not in one of the 50 States, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, or American Samoa, we look to the laws of the District of Columbia...If you and the insured were validly married under State law at the time you apply for wife’s or husband’s benefits or at the time the insured died if you apply for widow’s, widower’s, mother’s, or father’s benefits, the relationship requirement will be met. The relationship requirement will also be met if under State law you would be able to inherit a wife’, husband’s, widow’s, or widower’s share of the insured’s personal property if he or she were to die without leaving a will.
    I really do not know for a fact why the eligibility requirements for Social Security and VA benefits were established based on place of residence. However I would not be surprised in the least to discover that there is some connection between the origin of those eligibility standards and the existence of anti-miscegenation laws. Those laws clearly existed when the Social Security Act was passed; I'm reasonably sure that the laws authorizing the payment of veterans benefits are even older. And that the rules were formulated as they were in order to obtain buy-in from the Senators and Congressmembers representing states that still had anti-miscegenation laws and Jim Crow laws.

    These laws really need to be updated and/or superceded. While it may be that there are some legitimate reasons why place-of-residence should have some relevance, I can't think of any such circumstances that would affect the cases you've cited.

  •  OBAMA in SOTU..and his follow up... (0+ / 0-)

    OBAMA SOTU 2014

    from: Michael Bedwell: Alas, the author only understands part of the story. 1. In addition to legislation (which, yes, doesn't stand a chance of passing FOR YEARS), rulings at the federal district court level in two lawsuits have ruled Title 38's treatment of gay married veterans unconstitutional, and there's a new one by the American Military Partners Association. Second, the Obama Administration COULD legitimately refuse to enforce Title 38 § 103(c) discriminating against legally married gay military couples living in states that refuse to recognize those marriages JUST AS they have been refusing to enforce the unconstitutional definitions of a veteran’s “spouse” as “a person of the opposite sex” found in Title 38 §§ 101(3) & (31) SINCE LAST SEPTEMBER. We cannot explain why, once again, the Administration is being arbitrary in what they do, but the Administration should be publicly called to account for such hypocrisy; reminding it of Attorney General Holder's words last September:

    “Although the Supreme Court did not address the constitutionality of the Title 38 provisions in ‘Windsor’, the reasoning of the opinion strongly supports the conclusion that those provisions are unconstitutional under the Fifth Amendment. [C]ontinued enforcement of the Title 38 provisions pending further judicial review is unwarranted [and] would likely have a tangible adverse effect on the families of veterans and, in some circumstances, active-duty service members and reservists, with respect to survival, health care, home loan, and other benefits.”

    We have every right to demand that they provide equality for married gay veterans in ALL states NOW while another lawsuit works through the courts.

    Proud to be part of the 21st Century Democratic Majority Party of the 3M's.. Multiracial, Multigender and MiddleClass

    by LOrion on Mon Aug 25, 2014 at 03:54:49 PM PDT

  •  Legislative fixes in the works, but going nowhere (0+ / 0-)
    Sen. Murray introduces Social Security bill to benefit married couples
    This story was from May 2014, but I don't think there's been much movement since then.

    "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

    by lgmcp on Mon Aug 25, 2014 at 04:16:58 PM PDT

  •  As a single person (1+ / 0-)
    Recommended by:

    I'd like to know why married people think they should received any special "benefits" or extra money, just because they are married.  Talk about DISCRIMINATION.  

  •   (0+ / 1-)
    Recommended by:
    Hidden by:
    Santa Susanna Kid ==
    New Balance $65
    Air Jordan (1-24) shoes $45
    Jordan (1-22)&2014 shoes $48
    Nike shox (R4, NZ, OZ, TL1, TL2, TL3) $35
    Handbags ( Coach Lv fendi D&G) $30
    T-shirts (polo, ed hardy, lacoste) $14
    Jean (True Religion, ed hardy, coogi)$34
    Sunglasses ( Oakey, coach, Gucci, Armaini)$15
    New era cap $16
    Biki ni (Ed hardy, polo) $18  

  •  Marriage equality.... (0+ / 0-)

    is a Civil Right, and civil rights must never be left up to individual states.

    "These 'Yet To Be' United States" --James Baldwin-- -6.75, -5.78

    by kevinbr38 on Thu Aug 28, 2014 at 04:05:59 AM PDT

  •  I still think (0+ / 0-)

    if would be easier if the laws were rewritten in such a way that marriage itself was never mentioned at all. Instead, the nature of the relationship could be spelled out: cohabitation, shared parenting, shared finances, mutual caregiving, duration of the relationship, etc.

    From my point of view, marriage shmarriage. Doing it this way would include almost all actual marriages and a number of might-as-well-be-marriages, would not depend on state marriage laws, and would even exclude certain marriages-in-name-only.

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