Implementing the DOMA Ruling: Official Statements from Government Departments
This month, in the weeks following the Supreme Court's June 26 ruling that struck down Section 3 of the so-called Defense of Marriage Act, the federal administration has been hard at work ensuring that the repeal of Section 3 is properly implemented and that married same-sex couples can gain access to as many of the more than 1,100 protections and responsibilities that marriage provides.
Many government departments and program facilitators have issued statements on their implementation of the ruling. Freedom to Marry has collected a round-up of these statements below.
For a more in-depth FAQ of how the DOMA ruling impacts you and your family, check out the AFTER DOMA guide, which talks through specific programs on how they will impact married same-sex couples.
The Obama Administration
(Full Press Statement HERE) The Obama administration issued a series of statements from various members of the administration. In addition to these three statements, administration officials Chuck Hagel (Secretary of Defense, statement HERE), Kathleen Sebelius (Secretary of Health & Human Services, statement HERE), Janet Napolitano (Secretary of Homeland Security, statement HERE), and Elaine Kaplan (Acting Director of the U.S. Office of Personnel Management, statement HERE), issued statements independent of their respective departments.
President Barack Obama
This was discrimination enshrined in law. It treated loving, committed gay and lesbian couples as a separate and lesser class of people. The Supreme Court has righted that wrong, and our country is better off for it. We are a people who declared that we are all created equal – and the love we commit to one another must be equal as well.
This ruling is a victory for couples who have long fought for equal treatment under the law; for children whose parents’ marriages will now be recognized, rightly, as legitimate; for families that, at long last, will get the respect and protection they deserve; and for friends and supporters who have wanted nothing more than to see their loved ones treated fairly and have worked hard to persuade their nation to change for the better.
So we welcome today’s decision, and I’ve directed the Attorney General to work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.
On an issue as sensitive as this, knowing that Americans hold a wide range of views based on deeply held beliefs, maintaining our nation’s commitment to religious freedom is also vital. How religious institutions define and consecrate marriage has always been up to those institutions. Nothing about this decision – which applies only to civil marriages – changes that.
The laws of our land are catching up to the fundamental truth that millions of Americans hold in our hearts: when all Americans are treated as equal, no matter who they are or whom they love, we are all more free.
Secretary of State John Kerry
The U.S. Department of State applauds the Supreme Court’s decision striking down an unjust and discriminatory law and increasing freedom and equality for LGBT Americans.
As a Senator, I voted against DOMA in 1996 and argued that it was unconstitutional. As Secretary of State, I look forward to the work that now can and must be done to adjust rules and regulations that affect the many married Americans who were hurt by this law. While I am incredibly proud of the job that the State Department has done in ensuring equal benefits for our employees, there’s more to be done. To fully implement the requirements and implications of the Court’s decision, we will work with the Department of Justice and other agencies to review all relevant federal statutes as well as the benefits administered by this agency. We will work to swiftly administer these changes to ensure that every employee and their spouse have access to their due benefits regardless of sexual orientation both at home and abroad.
I am proud of the progress we’re making in this arena, and particularly proud that I work for a President who has helped to lead the way forward. From Stonewall to the repeal of ‘Don’t Ask, Don’t Tell,’ despite setbacks along the way, the arc of our history on this issue has bent towards inclusion and equality, perhaps never more so than today. (Statement HERE)
Attorney General Eric Holder
Today’s historic decision in the case of United States v. Windsor, declaring Section 3 of the Defense of Marriage Act unconstitutional, is an enormous triumph for equal protection under the law for all Americans. The Court’s ruling gives real meaning to the Constitution’s promise of equal protection to all members of our society, regardless of sexual orientation. This decision impacts a broad array of federal laws. At the President’s direction, the Department of Justice will work expeditiously with other Executive Branch agencies to implement the Court’s decision. Despite this momentous victory, our nation’s journey – towards equality, opportunity, and justice for everyone in this country – is far from over. Important, life-changing work remains before us. And, as we move forward in a manner consistent with the Court’s ruling, the Department of Justice is committed to continuing this work, and using every tool and legal authority available to us to combat discrimination and to safeguard the rights of all Americans. (Statement HERE)
Department of Health and Human Services
(Full Press Statement HERE) The Department of Health and Human Services issued a statement on August 29, 2013 clarifying that all beneficiaries in private Medicare plans have access to equal coverage in nursing homes where their spouses live. The HHS explained that the guarantee of coverage applies to all legally married same-sex couples, regardless of whether or not they live in a marriage state. HHS Secretary Kathleen Sebelius said in a release:
HHS is working swiftly to implement the Supreme Court’s decision and maximize federal recognition of same-sex spouses in HHS programs. Today’s announcement is the first of many steps that we will be taking over the coming months to clarify the effects of the Supreme Court’s decision and to ensure that gay and lesbian married couples are treated equally under the law.
Marilyn Tavenner, the administrator of the Centers for Medicare & Medicaid Services (CMS) added:
Today, Medicare is ensuring that all beneficiaries will have equal access to coverage in a nursing home where their spouse lives, regardless of their sexual orientation. Prior to this, a beneficiary in a same-sex marriage enrolled in a Medicare Advantage plan did not have equal access to such coverage and, as a result, could have faced time away from his or her spouse or higher costs because of the way that marriage was defined for this purpose.
Department of Defense
(Full Press Statement HERE) Defense Department officials will move forward in making benefits available to all military spouses, Defense Secretary Chuck Hagel said in a statement issued after the U.S. Supreme Court struck down the Defense of Marriage Act.
The Department of Defense welcomes the Supreme Court's decision today on the Defense of Marriage Act. The Department will immediately begin the process of implementing the Supreme Court's decision in consultation with the Department of Justice and other executive branch agencies. The Department of Defense intends to make the same benefits available to all military spouses -- regardless of sexual orientation -- as soon as possible. That is now the law, and it is the right thing to do.
Every person who serves our nation in uniform stepped forward with courage and commitment. All that matters is their patriotism, their willingness to serve their country and their qualifications to do so. Today's ruling helps ensure that all men and women who serve this country can be treated fairly and equally, with the full dignity and respect they so richly deserve.
On August 13, Sec. Hagel released an official memorandum detailing the implementation of the ruling:
The Department of Defense welcomes the Supreme Court's recent decision declaring section 3 of the Defense of Marriage Act, which prevented federal recognition of same-sex marriages, to be unconstitutional. The Department has begun the process of implementing the Supreme Court's decision in consultation with the Department of Justice and other executive branch agencies. It is now the Department's policy to treat all married military personnel equally. The Department will construe the words 'spouse' and 'marriage' to include same-sex spouses and marriages, and the Department will work to make the same benefits available to all military spouses, regardless of whether they are in same-sex or opposite-sex marriages. The Department will continue to recgonize all marriages that are valid in the place of celebration.
The implementation effort is led by the Acting Under Secretary of Defense for Personnel and Readiness, in coordination with the Military Departments. It is my expectation that all spousal and family benefits, including identification cards, will be made available to same-sex spouses no later than September 3, 2013. The Acting Under Secretary of Defense of Personnel and Readiness will issue further guidance as necessary as the Department works through this process.
On February 11, 2013, my predecessor directed that the Department of Defense extend, by August 31, 2013, certain benefits to same-sex domestic partners of military members, and, where applicable, the children of the same-sex domestic partner, once the Service member and their same-sex domestic partner signed a declaration attesting to the existence of their committed relationship. He also stated that the Department would reassess this decision if the Defense of Marriage Act were to become no longer applicable to the Department. After the recent Supreme Court decision made the Act inapplicable to the Department, that reassessment was conducted.
As the Supreme Court's ruling has made it possible for same-sex couples to marry and be afforded benefits available to any military spouse and family, I have determined, consistent with the unanimous advice of the Joint Chiefs of Staff, that the extension of benefits to the same-sex domestic partners of military members is no longer necessary to remedy the inequity that was caused by section 3 of the Defense of Marriage Act.
We recognize that same-sex couples not stationed in a jurisdiction that permits same-sex marriage would have to travel to another jurisdiction to marry. Accordingly, the Department will implement policies to allow military personnel in such a relationship non-chargeable leave for the purpose of traveling to a jurisdiction where such a marriage may occur. This will provide accelerated access to the full range of benefits offered to married military couples throughout the Department and help level the playing field between opposite-sex and same-sex couples seeking to be married.
The Department of Defense remains committed to ensuring that all men and women who serve our country and their families are treated fairly and equally. Expeditious implementation of the decisions announced in this memorandum will help the Department remain true to that commitment.
Department of Homeland Security
(Full Press Statement HERE) Statement from Secretary of Homeland Security Janet Napolitano:
After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.
The department also issued a brief "Frequently Asked Questions" about how the ruling will impact married binational same-sex couples:
Q1: I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a family-based immigrant visa?
A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be automatically denied as a result of the same-sex nature of your marriage.
Q2: My spouse and I were married in a U.S. state that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse?
A2: Yes, you can file the petition. In evaluating the petition, as a general matter, USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, we may provide further guidance on this question going forward.
Office of Personnel Management
(Full Press Statement HERE) Guidance on the Extension of Benefits to Married Gay and Lesbian Federal Employees, Annuitants, and Their Families
As you already know, on June 26, 2013, the Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. As a result of this decision, the United States Office of Personnel Management (OPM) will now be able to extend benefits to Federal employees and annuitants who have legally married a spouse of the same sex.
There are numerous benefits that are affected by the Supreme Court’s decision, and it is impossible to answer today every question that you may have. Nevertheless, I want to assure you that the U.S. Office of Personnel Management is committed to working with the Department of Justice to ensure swift and seamless implementation of the Court’s ruling. OPM will be issuing additional information covering a broader range of issues, but at this time, OPM can offer the following guidance regarding specific employee benefits that may be of particular interest:
- Health Insurance (FEHB): All legally married same-sex spouses will now be eligible family members under a Self and Family enrollment. In addition, the children of same-sex marriages will be treated just as those of opposite-sex marriages and will be eligible family members according to the same eligibility guidelines. This includes coverage for children of same-sex spouses as stepchildren. Employees and annuitants will have 60 days from June 26, 2013 until August 26, 2013, to make immediate changes to their FEHB enrollment. Enrollees will continue to be eligible to make changes to their coverage options during Open Season later this year. For those employees and annuitants who already have a Self and Family insurance plan, coverage for their same-sex spouse will begin immediately upon their notifying their FEHB carrier that there is a newly eligible family member. For those employees and annuitants electing Self and Family for the first time, benefits will be effective on the first day of the first pay period after the enrollment request is received. While online enrollment systems are updated, it may be necessary for employees and annuitants to update their elections using the paper (rather than electronic) version of the SF2809 form.
- Life Insurance (FEGLI): All legally married same-sex spouses and children of legal same-sex marriages are now eligible family members under the FEGLI Program, which means that employees may add coverage for a same-sex spouse and any newly eligible children under Option C. Employees will have 60 days from June 26, 2013 until August 26, 2013, to make changes to their FEGLI enrollment.
- Dental and Vision Insurance (FEDVIP): As with FEHB, all legally married same-sex spouses will now be eligible family members under a Self and Family enrollment or a Self Plus One enrollment. Current FEDVIP enrollees may now call BENEFEDS (877-888-FEDS (3337)) directly to make the necessary enrollment changes. Employees will have 60 days from June 26, 2013 until August 26, 2013, to make changes to their FEDVIP enrollment. Current enrollees will also be able to make changes to their coverage options during Open Season later this year, and individuals wishing to enroll in FEDVIP for the first time may also do so at that time.
- Long-Term Care Insurance (FLTCIP): All legally married same-sex spouses can now apply for long- term care insurance under FLTCIP. Same-sex spouses of employees will have 60 days from June 26, 2013, to apply for FLTCIP coverage with abbreviated underwriting.
- Retirement: All retirees who are in legal same-sex marriages will have two years from the date of the Supreme Court’s decision (i.e., June 26, 2015) to inform OPM that they have a legal marriage that now qualifies for recognition and elect any changes to their retirement benefits based on their recognized marital status. In the coming days, OPM will be developing guidance to help retirees determine whether they wish to change their pension benefits in a way that will provide benefits for their surviving spouse. Retirees will need to determine whether this option makes sense for them, as making this election will likely result in a deduction to the monthly annuity that the retiree currently receives. Going forward, the same-sex spouses of retiring employees will be eligible for survivor annuities.
- Flexible Spending Accounts (FSA): All employees who are in legal same-sex marriages will now be able to submit claims for medical expenses for their same-sex spouse and any newly qualifying (step)children to their flexible spending program.
Additional guidance regarding these and other benefits will be coming soon. In the meantime, questions regarding the effect of the Supreme Court’s DOMA decision on Federal employee and annuitant benefits should be directed to OPM through your agency Chief Human Capital Officer.
Internal Revenue Service (IRS)
(Full Press Statement HERE) We are reviewing the important June 26 Supreme Court decision on the Defense of Marriage Act. We will be working with the Department of Treasury and Department of Justice, and we will move swiftly to provide revised guidance in the near future.
Social Security Administration
(Full Story HERE) I am pleased to announce that Social Security is now processing some retirement spouse claims for same-sex couples and paying benefits where they are due. We continue to work closely with the Department of Justice. In the coming weeks and months, we will develop and implement additional policy and processing instructions. We appreciate the public’s patience as we work through the legal issues to ensure that our policy is legally sound and clear.