Jun 21, 2013

What Happens If DOMA Is Found Unconstitutional?

    The Supreme Court is likely to hand down its opinion on the constitutionality of the Defense of Marriage Act (DOMA) next week. DOMA forbids the federal government from recognizing same sex marriages even though some states recognize them. Many observers expect that DOMA will be found unconstitutional. This would not take care of the same sex marriage issue for Social Security, however.  The Social Security Act says that the determination of whether a person is married is based upon the law of the state in which he or she is domiciled, or was domiciled as of the date of the person's death. 
     What if two men or two women marry in New York or some other state that recognizes same sex marriage and one party to the marriage later starts to draw Social Security benefits based upon that marriage but the couple then moves to North Carolina, one of the many states that refuse to recognize same sex marriages within their borders, even if the marriage took place in another state? Does that mean that the spouse who was eligible for Social Security benefits while living in New York is suddenly ineligible because he or she has moved to North Carolina? That would be a weird result and hard for Social Security to implement. There is certainly an argument that North Carolina has a constitutional duty to give "full faith and credit" to the marriage that took place in New York but that issue isn't before the Supreme Court at the moment and won't be for at least another year. So what can Social Security do now? Let's look at the Social Security Act itself. In addition to providing that in determining marital status Social Security must look to state law in the state in which the claimant is living, 42 U.S.C. §416(h)(1)(B) provides that:
In any case where under [state law a person is not married] but it is established to the satisfaction of the Commissioner of Social Security that such applicant in good faith went through a marriage ceremony with such individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage, then ... such purported marriage shall be deemed to be a valid marriage.
     Doesn't that apply here? The parties to this same sex marriage went through their marriage ceremony in New York in good faith. It was no "purported" marriage to them or to the state of New York. The only legal impediment is one that arose after the marriage when the parties moved to North Carolina. Shouldn't the marriage be deemed to be a valid marriage even after the couple move to North Carolina? That's no slim reed. It's a strong argument based upon the plain language of the statute, one that I'd be happy to litigate. This interpretation avoids the ridiculous outcome of a person being eligible for Social Security benefits in one state but ineligible if he or she moves to another state. This doesn't force same sex marriage on states that don't want it. They're free to ignore them. This just allows for a uniform application of the Social Security Act across the country.
    The problem with the "deemed marriage" provision is that it doesn't help the Obama Administration deal with the issue in other settings, such as veteran's benefits (update: the concept of deemed marriage does exist to some extent in veterans benefits law, 38 C.F.R. §3.52) and federal employee benefits. It's possible that the Obama Administration will decide that if DOMA is unconstitutional that state laws that refuse to recognize same sex marriages contracted in other states are unconstitutional and refuse to apply them. The President felt that he was obliged to apply DOMA (but not defend it in court) even though he believed it unconstitutional but DOMA was federal law. The President swore an oath to uphold federal law. He never swore an oath to abide by state laws that he regards as unconstitutional.
     We'll see what the Supreme Court does and what the White House does thereafter but my bet is that if DOMA is found unconstitutional, one way or another Social Security will start recognizing same sex marriages that were valid at the time the parties entered into them regardless of where the parties move thereafter.

8 comments:

Anonymous said...

And what will happen to our SSI clients in same sex relationships with regards to deeming of income of a spouse?

Up to now, this refusal to recognize same sex marriages has been beneficial to our clients.

Anonymous said...

Actually, that's an excellent question. Two men in the same home would have to be questioned about their relationship I suppose (women too). That or either remove couples deeming all together.

I think you would have to strongly consider removing the spousal deeming all together. Otherwise it just wouldn't work. You couldn't penalize married couples and same sex couples.

Anonymous said...

SSI is needs-based. If you did away with deeming then it is just free govt money with no restrictions. Just to placate an extremely small special-interest group.

Anonymous said...

It would be just like a holding out relationship, the swinging '70s concept when SSI came into being and wanted to address people livng together, no difference.

Anonymous said...

Solution for SSI: We are not concerned with your sexual o marital relationship, just the number of people in the household. Determine a declining % of benefit for each additional person in the household, and we do not care if you call them spouse, roommate, guest, squatter, etc. For example, first eligible gets 100% benefit, second eligible gets 75% benefit, third eligible gets 50% benefit, and any additional eligible is capped at 25% benefit. The amount paid is the household benefit, not any individual benefit. Also, consider all income in household as shared by all (isn't that the way the USA is going)when determining benefits. This eliminates the need to ask or document personal questions and places relationships on a more business level status. After all, welfare is just to provide food, clothing and shelter, and the results of welfare policies are not to create or support strong families or personal relationships. Let's support the efficiencies of multiple person households to get the most bang from our welfare dollar! Think of the savings for group meals, lower utility bills per person, etc.! Or, are you just concerned about SEX in setting welfare benefit???

Anonymous said...

11:26 So you would be comfortable with the same approach to your tax return? Reduce it by the number of people in the home instead of increasing it? Same for your mortgage deduction, pre-tax health insurance costs, capital gains and dividends not taxed, pension plans, earned income tax credit, state and local taxes used to offset federal tax liability, and charitable donations and taxing SSA and Railroad retirement benefits. The above top
individual tax breaks will cost more than $3.5 trillion in uncollected taxes between 2011 and 2015. Those are just the individuals, just regular people. Its harder to say I want to take away what helps me than it is take it away from someone else.

Anonymous said...

@ 12;27.

apples to oranges. SSI is FREE money given to people to maintain basic living standards.

Taxes are monies PAID and are used to incentivize or disincentize certain actions.

Anonymous said...

to 6:44 AM - well said! We all must understand that it is the taxpayer who ultimately provides the $$$ for those on welfare. Policies that discourage the tax payer will have unintended consequences that destroys those who realistic social welfare policies tries to help. I thought bleeding the patient to cure him ended centuries ago when people realized it didn't work! Now, our social experiment is to see how much we can bleed the taxpayer.