Dumping DOMA

Gay spouses will now get federal benefits — but not all of them, and not everywhere



You could be forgiven for losing sight of the Supreme Court's decision to cast out parts of the federal Defense of Marriage Act (DOMA) last week. In California, which has followed the public battle over Proposition 8 for nearly five years, the news that gay couples can once again get married was more tactile and magnetic than a bunch of talk about taxes.

But when justices repealed Section 3 of DOMA, which was enacted by Congress and signed by President Bill Clinton in 1996, they opened up more than 1,100 benefits and protections that had previously been awarded only to straight couples, even in states where gay marriage was legal.

Those benefits range from the pedestrian (married gay couples can now file joint tax returns) to the meaningful (husbands and wives of gay military members will be allowed to visit family members on base) to the peculiar (you can now transfer ownership of your uninhabited guano island to your spouse).

While many of the protections are seemingly minor or uncommon, they constitute a meaningful change in how gay couples are perceived by our government.

Still, some uncertainties remain, particularly for married gay couples who later relocate to one of the 36 states where gay marriages are not recognized.

Jamila Tharp and her wife Michelle Hasting were one of the first couples to marry in Humboldt County during that brief period in 2008 before Proposition 8 passed and prevented counties from issuing marriage licenses to gay couples. They'd been in love since 1990 and had married in Canada in 2006. Not shy of making a statement (their daughter Abigail led an equality march across the Golden Gate Bridge at age 4), the couple had been coming into County Clerk Carolyn Crnich's office once a year since 2004 to apply for a license, knowing they'd be denied. When the state Supreme Court ruled in May 2008 that gay marriage was protected by the California constitution, Tharp recalled, Crnich personally called them and said "get down here."

After marrying, they moved to Salt Lake City, where Tharp studied to be a Unitarian Universalist minister, then to Oregon, where they now live with their three children. Tharp said she's uncertain what federal benefits will actually apply to her and her family — Oregon does not recognize gay marriages. "I'm still kind of waiting to see how all this works. My hope is that Congress and Obama will pass something that will put an end to this ridiculous awkward web of institutional discrimination toward LGBT people."

It's unclear what benefits will be provided to same-sex couples in states like Oregon, where gay marriages are not recognized by the state government. The federal agencies that determine those benefits often look to the state for marriage validation, according to the Human Rights Campaign. The Internal Revenue Service and Social Security, for example, look to the state where a couple lives, not where they got married. Other agencies may look to the state where a couple was married, or offer no clear indication how a marriage is verified.

"That's the big question," said Jan Ostrom, a retired Humboldt State University and College of the Redwoods film professor. "If we move to Alabama are we suddenly unmarried?"

Ostrom, and her wife Alexandra Wineland, who have been together 28 years, were the second gay couple to marry in the Humboldt County Courthouse. Both nearing 70 years old, they're retired and stable, with three daughters, seven grandchildren and a newly born great grandchild. For them, the DOMA ruling was more a philosophical victory than a fiscal one, Ostrom said. "What we expect now is to be treated the same as everybody else," she said.

But one of their three daughters, also a lesbian, lives in Alabama — another state that bans gay marriage — with her wife. The DOMA ruling was a victory, Ostrom said, but the remaining uncertainties need to be addressed. "They're going to have to recognize these marriages. We are not separate countries, even though it might sometimes seem that way."

Phillip Smith-Hanes, the county's chief administrative officer, said he was pleased by the Supreme Court's ruling, but that he and his husband Stan aren't the "poster children" for the effects of DOMA's repeal. He doesn't predict any looming effects on their marriage. "The impact is not really immediate," he said. "By the time I get there, Social Security may or may not exist."

Last month, the Arizona Daily Sun reported that Smith-Hanes was one of five finalists for Coconino County manager. Arizona, like most U.S. states, doesn't recognize gay marriage. Smith-Hanes was quick to point out he hasn't gotten a job offer yet, and it remains unclear how federal benefits will be handled in those states, should the couple decide to move.

"The nice part about living in California is that I don't expect too much change for us," he said.

For couples in gay-marriage-friendly states, DOMA's repeal could go a long way, particularly for federal employees, whose spouses will now be eligible for benefits.

Following last week's decision, National Forest Service biologist Karen Pope said she and her girlfriend of five years, Sherilyn Munger, began making plans to marry this fall. For them, filing joint taxes will simplify things, but not alter the amount they pay — their incomes are about equal, Pope said. The crucial change is Munger's insurance. She works part time for Coldwell Banker and has her own property management company. "She just has catastrophic [coverage] and the rates go up every year because she gets older," Pope said. When they marry, Pope will add Munger to her insurance. "That'll be huge."

Charlotte Medina also looks forward to health insurance. Her wife Melissa has health insurance through her job teaching art to developmentally delayed adults, but it's too expensive for them to consider adding Charlotte to the plan because the insurance company doesn't recognize their marriage, she said. "I'm hoping I might get health insurance now."

While DOMA's repeal doesn't mean drastic changes for them ("We don't have kids and we're still pretty young and we're super poor"), Charlotte said, the nuts and bolts make a difference.

"It's death and taxes," she said. "It's all really practical and it's not very glamorous or romantic stuff — the things you don't necessarily want to talk about."

Since they married in 2008, they filed cumbersome tax returns each year — joint state taxes, two individual federal returns and a federal addendum to explain how shared income, assets and debts were accounted for. "It's almost like being half married."

Eileen Sacra Capaccio, a certified public accountant at Hunter, Hunter and Hunt in Eureka, said filing joint taxes will not necessarily save a married gay couple money. If both are employed, the combined income could push them into a higher tax bracket. "It is going to be on a case-by-case basis, and it'll help some people."

Capaccio said she filed extensions this year for gay clients who would benefit from a joint filing, anticipating that the DOMA ruling might change their federal status. The six-month extension may not be enough, Capaccio said. The ruling isn't official until late July, and then all eyes will be on the Internal Revenue Service for instructions. She's not sure whether the IRS will enact and explain new policies in time for the Oct. 15 filing deadline.

Ric Warren, who owns Ric's Haircolor Salon in Arcata, said he and his husband Dante DiGenova were relieved that the ruling could provide additional clarity for medical decisions. "I can make a decision for him and he can make a decision for me that, hopefully, we've discussed prior."

Referencing stories of legal battles that have occurred around the U.S. between surviving gay spouses and disapproving families, Warren said it was a relief that the house they own together could be transferred with relative simplicity.

"When you're gay, oftentimes there are people in your family who disapprove," Warren said. "Somebody on the other side of the family might decide they're going to step in and take it — and before, they could have. We'd like to decide who got it."

"It's nice to have some clarity where we stand," DiGenova said. "Especially since we've been together so long. After a while you sort of expect you have the same rights as everybody else."

Some readers may have seen a video circulating around Facebook recently of two Humboldt County sisters introducing President Obama at an LGBT Pride Month reception. After calling for increased school funding and gun control, Zea and Luna Weiss-Wynne asked for Obama's support of gay marriage "because we have two moms and they are just as good as other parents. They love us a lot."

Those moms, Nora Wynne and Lara Weiss, were celebrating the DOMA ruling last week. Weiss, who works for the County Department of Public Health, said she and Wynne have talked about working internationally — a realm of uncertain protections for gay American couples. Repeal of DOMA could make it safer for gay couples to work abroad, Wynne speculated.

Zea and Luna, both 9, are happy with the ruling, though Wynne said their daughters struggle with understanding why people oppose gay marriage. "To them it's a very public issue right now, more than what they're used to."

Many questions remain. Some benefits may apply retroactively for couples who have been married. It's still unclear how federal benefits will be awarded in states that don't recognize gay marriage. Section 2 of DOMA, which allows states to discriminate against gay couples married in other states, still stands.

Nearly everyone who spoke with the Journal about DOMA last week said more needs to be done to recognize LGBT rights. They called for protections against discrimination in adoptions, housing and employment. Still, the latest victory, Jamila Tharp said, was more than a twinkle of hope. "We're really positive. We feel like there's going to be tremendous change."

Benefits at a Glance

The Defense of Marriage Act limited more than 1,100 benefits and protections for couples in gay marriages. With Section 3 of the act repealed, it appears gay couples may be afforded those rights. According to the Human Rights Campaign, a national organization that has advocated for LGBT rights, people living in gay-marriage-approved states should be eligible for those benefits as soon as the Supreme Court's decision takes effect, 25 days after the ruling was issued.

Among them, according to a task force of LGBT advocacy groups, are:

Military spousal benefits: Service members receive roughly 30 percent of their total compensation in base pay. The remaining 70 percent comes from special allowances and benefits, including many that are increased for married service members. They include retirement benefits, insurance coverage, the ability to move off base with a spouse, and access to legal assistance, base facilities and family center programs.

Medical leave: The Family and Medical Leave Act allows eligible employees of covered employers to take unpaid leave to care for a spouse who has a serious health condition.

Federal employees: Spouses of federal employees may be eligible for employer-provided health insurance coverage, although it remains unclear how this will be handled in states that ban gay marriage.

Social Security: The retirement spousal benefit allows a non-earning or lower earning spouse to collect an amount that is equal to half of the other spouse's Social Security benefit. In addition, Social Security pays benefits to people who cannot work because they have a medical condition that is expected to last at least one year or result in death.

Federal taxes: The Internal Revenue Service is expected to ask gay married couples to file joint tax returns. For those marriages recognized by the IRS, tax preparation should be simpler and less expensive than it was with DOMA. The questions that have faced married same-sex couples at tax time, like "who claims which child" and "how much of the mortgage deduction or charitable deduction do we each take" are eliminated for married same-sex couples.

Immigration: The spouse of a U.S. citizen will, in many cases, qualify for a green card.

Private employment: Although DOMA did not bar private employers from offering most spousal employment benefits to employees' same-sex spouses, it subjected same-sex couples to discriminatory tax treatment. For example, married same-sex couples had to pay additional income taxes on the value of employer-sponsored health insurance, and divorced same-sex couples were barred by federal law from obtaining a court order sharing pension benefits as part of a divorce agreement.

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