Feb 24, 2011

Doing What You Won't Defend

Lambda Legal, "the oldest national organization pursuing high-impact litigation, public education and advocacy on behalf of equality and civil rights for lesbians, gay men, bisexuals, transgender people and people with HIV", says that it expects that the "executive branch will continue to enforce [the Defense of Marriage Act (DOMA) which prevents federal recognition of same-sex marriages] until it is repealed by Congress or struck down by the courts ..."

If this is accurate, and I expect it is, this puts the Social Security Administration in an awkward position. It must apply DOMA but if this is appealed to the federal courts, the Department of Justice will not defend what Social Security has done. I understand the logic that gets you to this position but how do you explain to a widow or widower that they cannot get Social Security benefits because theirs was a same-sex marriage -- even though the widow or widower has read that the Attorney General is unwilling to defend such a result?

1 comment:

Anonymous said...

From: ^Commissioner Broadcast
Sent: Thursday, February 24, 2011 2:43 PM
To: Undisclosed recipients

A Message To All SSA And DDS Employees
Subject: Defense of Marriage Act
Yesterday, the President and the Attorney General announced that the Administration would no longer defend the constitutionality of the Defense of Marriage Act (DOMA) in court. Currently, the DOMA prohibits us from paying some types of benefits to individuals in same-sex marriages and from offering certain benefits to employees in same-sex marriages, although we have offered what we can under the law.
Anticipating the President might make this decision, last year I organized a senior-level group and charged them with two primary tasks: 1) to identify all of the systems changes that would be required if DOMA were repealed; and 2) to ensure all new systems could quickly and easily adapt to changes in DOMA.
However, it is important to understand that the law has not changed yet, and that under yesterday’s announcement, we must continue to apply DOMA until this issue is decided in the courts. There is a range of possible outcomes for the litigation, and the timing of a final decision is unclear. As a result, there are no immediate changes to our current procedures for processing applications.
For now, the important thing to do is to prepare for dealing with some disappointed people who have misunderstood the implications of yesterday’s announcement. I know I can count on all of you to respond respectfully.
We will update you as the various DOMA-related court cases progress.
Michael J. Astrue