DOMA and Prop 8 Series: Public Benefits Changes for Legal Services Cathy Sakimura, Family Law Director, National Center for Lesbian Rights Amy Williams, Managing Attorney, Legal Services of Northern California

U.S. v. Windsor (DOMA) The Supreme Court ruled that section 3 of the federal Defense of Marriage Act (DOMA) is unconstitutional. Section 3 of DOMA previously prohibited the federal government from respecting marriages between same-sex spouses.

Hollingsworth v. Perry (Prop 8) The Supreme Court held that the proponents of Prop 8 did not have standing to appeal the district ruling striking down Proposition 8 as unconstitutional. The result is that the district court opinion in Perry stands. The district court ruled that Prop 8 is unconstitutional and enjoined the state from enforcing the ruling. On June 28, 2013, the Ninth Circuit lifted the stay on the Perry ruling, and same-sex couples began marrying throughout the state. The proponents of Prop 8 have asked the CA Supreme Court to issue a writ of mandate stopping CA from following the Perry injunction. The Court refused to stay marriages as the proponents requested but has not yet decided whether or not it will consider the case.

CA law applies equally to same-sex spouses All validly married same-sex spouses (regardless of where or when they married) should have their marriages fully respected in California for all purposes. There should be no difference in how the law applies to same-sex and different-sex spouses. Forms and statutes still contain discriminatory language, but the effect of the Perry ruling should require all laws to be equally applied. However, all non-biological parents must still get adoptions or parentage judgments to ensure their rights are respected in every state, even if they are on the child’s birth certificate. This is necessary even if parents live in California.

Federal rights of same-sex spouses in CA All same-sex married spouses living in California should be fully respected as married by the federal government for all purposes. Agencies may take some time to change forms and procedures, but all agencies must fully recognize the marriages of CA same-sex spouses. Agencies must recognize that same-sex spouses have been married since their date of marriage, but application deadlines and age requirements still apply. Some agencies may provide special enrollment periods, but questions remain regarding retroactive application.

Specific federal programs Social Security is still awaiting guidance/changes in systems. Social Security is currently holding claims for spousal benefits, but all married spouses in CA must be respected. Medicare’s definition of spouse is tied to Social Security. Department of Defense has issued guidance that all validly married couples will be recognized regardless of where they live (spouses who move will retain benefits). Same-sex spouses must file federal income taxes as married. This will affect their eligibility for many income-based programs. Being recognized as married may not be financially advantageous for many couples, particularly for SSI recipients, and couples who are not married should be advised that they may lose benefits if they marry.

State-run federal programs: Medi-Cal, CalWORKS Medi-Cal and CalWORKs previously did not recognize marriages between same-sex spouses because of Section 3 of the federal DOMA. Now that this law has been struck down, these programs should fully recognize marriages between same-sex couples. Medi-Cal will change in 2014 after ACA implementation, but same-sex married couples should be treated exactly the same as different-sex married spouses. This may not be financially advantageous for many couples, and couples who are not married who receive these benefits should be advised that they may lose benefits if they marry.

CA Registered Domestic Partners California domestic partnerships will not be converted into marriages. Couples may be both married and in a registered domestic partnership (with the same person). It is unclear which federal spousal benefits will apply to RDPs. Social Security and Medicare may apply, but other benefits likely will not. We are awaiting guidance regarding tax filing status for RDPs from the IRS, but it is likely that they will not file taxes jointly. This will affect income eligibility for Medi-Cal and exchanges under the ACA, as well as other programs. RDPs who want federal recognition should marry. However, depending on what benefits they receive, marrying can be financially disadvantageous.

Same-sex couples living in other states Most states do not respect marriages between same-sex spouses. Some federal benefits will apply to same-sex spouses regardless of where they live: immigration, veterans and military benefits, spousal benefits for federal employees. Some federal benefits will most likely not apply to same-sex spouses living in states that do not respect their marriages: Social Security, SSI, Medicare. We do not yet know whether many federal benefits will apply to same-sex spouses in states that do not respect their marriages, but the White House has instructed agencies to fully implement Windsor and is urging broad application. When spouses move, if they are already receiving benefits, they may not lose benefits, but they may not be able to apply if they have not yet begun receiving benefits (depending on the program and situation).

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Presenters Cathy Sakimura, Family Law Director, National Center for Lesbian Rights: Amy Williams, Regional Counsel, Legal Services of Northern California,