Ari Ezra Waldman | Barack Obama | DOMA | Gay Marriage | Law - Gay, LGBT | News

What's Next: The Importance of the President in a Post-DOMA World


The "What's Next" series takes an in depth look at marriage and gay rights, in general, after the Supreme Court's momentous rulings striking down the Defense of Marriage Act and Prop 8. Today's column looks at the politics of implementing the Court's decision in Windsor.

The Supreme Court struck down DOMA. The narrowness of that 5-4 victory underscores the vital importance of who sits on that Court and, by extension, who nominates those jurists. But the president's role is broader than that. And now that we have shifted to a post-DOMA world, the president's role becomes outsized and essential.

President_Barack_ObamaIn short, President Obama has the power to make Windsor a real victory or a "skim milk" shadow of one.

The days leading up to decision day are all about the Court. Even as far back as the Prop 8 trial in Vaughn Walker's district court in San Francisco, our attorneys were playing both a short and long game: win the case at hand, but also keep on eye on winning a majority at the Supreme Court. The Ninth Circuit's narrower holding may have also had an eye on the Court: it cited countless Kennedy opinions and gave it a less risky way to be on the side of equality without going too far.

The days after the decision are all about implementation. And this is something the Court cannot do. It has no army, no staff of administrators and bureaucrats that will decide how the Court's decisions play out, and no means of enforcing the majority's will on the public. For this, we turn to the executive branch, and given that the Court did not touch crucial implementation questions, the role of the executive may prove to be the most important factor in the turning Windsor into a lasting gay rights victory.

Electing a supportive president -- on social, not just economic, issues -- and a supportive Congress matters, even when a victory comes from the words of the Supreme Court. For proof, we need look no further than the question of marriage recognition based on "state of celebration" versus "state of domicile."

I explain why, AFTER THE JUMP...

Every statute, every overturning of a statute, every modification to some law has to be implemented by the executive branch. To do that, the part of the government tasked with the law's operation -- say, the Social Security Administration with social security benefits -- writes rules and regulations to bring Congress's wishes  to life. Lawyers aptly call it administrative law.

For example, if a statute hinges a benefit on being the "spouse" of someone entitled to that benefit and Congress didn't give an explanation for what it meant by the word "spouse", then it is up to the administrative agency in charge of implementing that particular benefit to write a regulation that defines spouse in accordance with the intent of Congress. Those regulations get published in the Code of Federal Regulations, a voluminous collection of how the executive branch is interpreting Congress's laws.

WhitehouseSo, when the Supreme Court says DOMA is dead, but leaves open the question of how the federal government will now determine which marriages are legitimate and which are not, executive rulemakers step in. Wherever it can, the Obama Administration is adopting a "state of celebration" rule, meaning that it will recognize all marriages as valid where they happened, not where the couple lives. Without this rule, Windsor would be an intellectual victory, at best, a pyrrhic one, at worst.

A conservative administration unsupportive of our cause would use its executive power to frustrate the Windsor decision by using a "state of domicile" rule, or a rule that would recognize only those marriages that are considered valid by the state in which the couple happens to live.

And this distinction between using a state of celebration rule and a state of domicile rule cannot be overstated. By definition, any marriage recognized by a state, i.e., that gets a license from a state, is clearly valid in that state. That's why gay couples who live and work in Texas come to New York or any of the other 12 states that recognize the freedom to marry. Therefore, a state of celebration rule would allow the federal government to recognize all marriages between two people of the same sex.

A state of domicile rule would make Windsor an empty victory for the thousands of gay couples living in marriage discrimination states, numbers that exceed the number of gay couples living and raising children in marriage equality states according to the Williams Institute. This rule would make the Texas couple's New York marriage irrelevant for federal benefits and recognition because the couple lives in Texas. 

President Obama has already started implementing a state of celebration rule. The Defense Department, immigration authorities, the IRS, and other departments are implementing the celebration rule quickly. The Office of Personnel Management, which handles all issues related to some 2 million federal employees, has been muddling along with murky and contradictory language on the meaning of "spouse" in its regulations, but the President was clear that he plans to authorize a state of celebration rewrite. 

If the "severely conservative" and "wrong on paper, wrong in fact" Mitt Romney were president, he would have to accept a Supreme Court ruling striking down DOMA, but he would be within his power to limit the effect of the decision by moving slowly and writing a state of domicile rule. That rule would certainly be subject to legal challenge, but even if that challenge proved successful, thousands of gay couples would be harmed in the interim.

SsaUnfortunately, there are a few areas where the President alone cannot enforce a state of celebration rule. The Department of Veterans Affairs operates on a statute that explicitly requires marriages be valid in the state in which the couple lives (state of domicile) for benefits to be extended. A similar rule is written into the Social Security Act.

All federal benefits are important, but social security is particularly so given its essential role in providing a social safety net for the elderly and their survivors. So, what do we do about this?

Congress could pass the Respect for Marriage Act, which would not only repeal the rump of DOMA (Section 2, more on that in another column), but would also authorize a state of celebration rule. But ROMA is going nowhere in the Republican House.

Congress could pass a specific amendment to the Social Security Act, but that too is unlikely as long as a Republican holds the Speaker's gavel.

We could challenge the SSA's state of domicile rule in court and the likelihood of success of that challenge got a lot higher after Windsor. Windsor's recognition of gay marriages now highlights the discrimination faced by gay couples just because of the accident of their residence. Two couples, separated by the just over 1-mile stretch of the Lincoln Tunnel, are treated wildly different, an effect that stands in direct opposition to the letter and spirit of Justice Kennedy's decision in DOMA.

Or, we could elect a Democratic House.

In other words, the ecstasy we feel as we take in the Court's decisions in Windsor and Perry is legitimate, but it should not distract us from the work that needs to be done to elect allies to the White House and to Congress lest the decisions be drained of their power.


Follow me on Twitter: @ariezrawaldman

Ari Ezra Waldman is the Associate Director of the Institute for Information Law and Policy and a professor at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

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  1. If Romney were President he would throw up roadblocks every step. Just like he did in MA. Implementation would take years and several more lawsuits.

    The idea that the federal government should only recognize the state of residence is extremely absurd. A modern country simply can't function like that. This isn't the 18th century where people spent their whole lives on their farm. Federal law simply needs to be uniform everywhere. Otherwise being a citizen of the United States has no meaning at all.

    Posted by: Steve | Jul 3, 2013 12:46:46 PM

  2. Not just any democrat politician but has to be a democrat politician that support equality !

    Posted by: AndyTowlette | Jul 3, 2013 12:48:48 PM

  3. I'm a widower after the death of my California registered domestic partner. Per California Family Code 297-297.5, we met all the standards of marriage. For purposes of Social Security and his pension (denied by his employer, one of the auto associations, claiming ERISA prohibited it), were we married? Where could my RDP status stand as of January 13, 2010, his date of death? I'm not asking out of greed - this is a big issue for Californians who could not marry and who otherwise qualify. There are enough widowers and widows like me that the issue stands.

    Posted by: John M. | Jul 3, 2013 12:55:22 PM

  4. and had McCain won in '08, we'd not have seen pro-Equality judges on the bench, folks.


    as much as conservatives want to ask "how's that Hope-y Change-y stuff working for ya?" with a smug little idiot's grin, the answer firmly remains "pretty darn good, actually"

    Posted by: Little Kiwi | Jul 3, 2013 1:00:18 PM

  5. What happens if there is a Republican president in 2016? How much of what is implemented by the Obama administration Executive branch can be reversed?

    Posted by: Stan | Jul 3, 2013 1:06:53 PM

  6. It's all true, but the sad fact is one day in the future, there will be a president more inimical to our rights. At that point, if we don't have guaranteed equal rights in all 50 states, we will likely have to re-address the matter in court. I'd love to say all the presidents from hereon in (not to mention SC justices) will be on our side, but unfortunately that isn't the case.

    Posted by: Bruno | Jul 3, 2013 1:11:06 PM

  7. That's why we need to elect Hillary in 2016. I still think continued public opinion shifts as the years go on will make it harder for a GOP president to go against us.

    Posted by: Anthony | Jul 3, 2013 1:15:12 PM

  8. with the Obama Administration, the gauntlet has been thrown down.

    from now on, there will be no "anti-gay" Democratic Presidential Nominees. That be DONE, yo.

    and the GOP will have to make a choice: play to the anti-gay bigots, and the xenophobic racist anti-immigrant bigots, or play to the reality of the American Demographic.

    What does anyone predict for 2016?

    There will be, no doubt, GOP nominees who will run on a platform of "Elect me and I'll make darn sure that the gays don't get any more Equal. I'll even try to UN-equal them, and roll back the progress that's been made."

    at that point, any gay republicans or non-gay republicans who claim to not be complete worthless bigots, will have to make a choice: is allegiance to the GOP worth being on the wrong end of history?

    Will we see two GOP nominees battle it out for who can be the Most Anti-Gay, or will it be a battle of Bigot VS "We Can't Win By Being Anti-Gay Jones"?

    Posted by: Little Kiwi | Jul 3, 2013 1:18:03 PM

  9. 1. I've seen no evidence that the IRS is implementing the state of celebration rule. Do you have a reference?

    2. In Gill, Judge Tauro's order was that SSA review various applications from the plaintiffs (all married in MA and residents of MA) without respect to DOMA section 3. But in Pedersen, Judge Bryant was less specific on SSA, and made no such respectful request for review by SSA without DOMA, instead referencing Social Security's use at points of the term "surviving spouse" and a discussion of how gendered terms should be read as non-gendered. Is there a chance we'll see something out of the CT Dist Ct on this later this month?

    Posted by: Chuckles | Jul 3, 2013 1:20:35 PM

  10. because of republican gerrymandering electing a democratic house will be difficult.

    Posted by: candide001 | Jul 3, 2013 1:22:45 PM

  11. Never underestimate the hatred and bitterness of Republicans and conservatives. That is why I will hold my nose and do as much as I can to see Hillary elected. None of the potential GOP candidates has shown anything but animosity towards the gay community. These people thrive on hatred. It is their lifeblood.

    Posted by: pedro | Jul 3, 2013 1:23:43 PM

  12. Here's what the IRS said on July 1. Full statement:

    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.

    Posted by: Chuckles | Jul 3, 2013 1:24:15 PM

  13. @Chuckles
    SSA is more complicated. The state of residence thing is written into the law (same with the VA). So they may not be able to get around that with internal regulations.

    Posted by: Steve | Jul 3, 2013 1:36:41 PM

  14. ENDA ring any bells? We need to keep the pressure up, I think. No one should be able to be fired for being LGBT.

    Posted by: Geoff | Jul 3, 2013 2:32:07 PM

  15. Ari says: "Wherever it can, the Obama Administration is adopting a "state of celebration" rule, meaning that it will recognize all marriages as valid where they happened, not where the couple lives. Without this rule, Windsor would be an intellectual victory, at best, a pyrrhic one, at worst."

    How is this so, when all the married people in states with SMM can get federal benefits? Edie Windsor just received her $363k(+int) tax refund from the IRS as a result of the court's ruling. In an historic first, a Bulgarian man married to an American man was awarded a green card on Monday. The DOD announced that gay military spouses can be buried with their husband or wife in national cemetaries. Etc., and there will be a million of these stories. Are these intellectual victories, at best? I think you are undervaluing the importance of Windsor decison, even if the Obama admin was attempting to defibe as narrow as possible (which it's not). Windsor is a game changer, and there's no turning back.

    Posted by: Bryan | Jul 3, 2013 3:27:20 PM

  16. I am hoping between now and the 2016 election, President Obama gets to replace Thomas, Scalia, Alito, Roberts or Kennedy on the court. I know it's unlikely but I would like to have a stronger majority on the Supreme Court.

    Posted by: Eddie | Jul 3, 2013 3:56:57 PM

  17. @Bryan - What you said. What happened last week majorly affected is a major victory.

    As for 2016, I say Hillary all the way. Hillary is apparently close to Sen. Gillibrand, who worked her butt off to get DADT repealed.These two women work tirelessly for rights for gays, women, and racial minorities. IMHO, Hillary is getting too old to tolerate watching oppression where it can be thwarted - her ego days are waning & her wanting to make a real difference is front and center. Hillary 2016

    Posted by: Jude | Jul 3, 2013 4:38:53 PM

  18. @Bryan - Edie was "lucky" enough to have her wife die in New York, where SSM is legal. Had her wife died across the border in New Jersey, she likely wouldn't be entitled to anything. So, it's a fantastic advance if you currently live in an equality state, but the IRS always goes by your state of residence for everything, and likely will continue to do so. That means that if you're among the 70% of the population that currently resides in a non-equality state, the IRS likely can't treat you as married, so matter the legality of your marriage in the state of celebration.

    Posted by: Neil | Jul 3, 2013 8:01:08 PM

  19. Ari was pointing out that Obama by declaring a state of celebration is utilizing Executive authority to maximize SCOTUS ruling on DOMA in as many Government Departments as possible.
    That includes the IRS where the current rule for married status is state of domicile law but will soon be changed to recognize an LGBT couple married in a state with SSM as married for federal taxation purposes everywhere in the US. They will also be accepting amended returns for up to 3 years prior.
    State returns would change according to state marriage laws but federal returns will recognize your legal SSM anywhere.
    That's my take.

    Posted by: JONES | Jul 3, 2013 9:57:21 PM

  20. The larger and more critical issue Ari was making was that we have to safeguard what we've worked so very hard to get by being vigilant in future elections state and federal. ALEC is insidious.

    The House is critical for not only safeguarding LGBT gains but for restoring voting protections left defenseless by the VRA ruling. Section 4 has to be restored and the House is the holdup. We need to ally our voices in protest whenever we can.
    The right to vote is paramount to democracy and equality.

    While a very few elected Republicans have made the move to support equality make no mistake that the GOP platform remains virulently anti equality. They have been and remain the political face of oppression in the US.

    Posted by: JONES | Jul 3, 2013 11:26:43 PM

  21. Correct, JONES. Executive authority in the aftermath of DOMA 3's demise isn't a panacea, but it's a very big deal, As Ari points out. We're already seeing why in the Obama administration's quick response to the Windsor decision--imagine the response under President Romney or any of the current Republican possibilities. They would be fighting every step of the way. And if we'd had President McCain appointing the last SC Justices, DOMA 3 would still be firmly in place.

    Posted by: Ernie | Jul 3, 2013 11:46:04 PM

  22. oh, i know what Ari is saying, and what I'm saying is that the application of the "state of domicile rule" across the board is not "an intellectual victory, at best, a Pyrrhic one at worst." A third of the US population lives in states that have SSM and married gay people in those states are seeing tangible life-changing benefits as a result of Windsor now. Ari saying this is at best an intellectual victory if not applied to "states of celebration" is a very characterization (at best). And of course there is more work to do. But when we win in the other 37 states, and we will win and soon, Windsor certainly will be the bedrock. Regardless of the administration, Windsor is a huge victory, with real impacts right now, and Ari should not devalue its importance in a legal discussion written for lay people.

    And whoever above said if Edie had not been married in NY, she wouldn't get the $. Well that's the whole basis of the case. If she hadn't of been married there would be no DOMA issue and the case would never exist.

    Tighten it up, Ari. This is a legal analysis.

    Posted by: bryan | Jul 4, 2013 12:52:27 AM

  23. From what I have read, it looks like married same-gender couples would probably receive Soc Sec survivor benefits in the CU/DP states as well because they have the right to inherit property without a will. Maybe CU and DP couples could too. Barbara Boxer has started to work on the Soc Sec issue.
    It looks like Social Security and veteran benefits will have to be changed by Congress. The ROMA will probably go nowhere.
    Bernie Sanders will be addressing the veteran benefits this month. The Charlie Morgan Military Spouses Equal Treatment Act of 2013 (Shaheen) would take care of the issue for veterans. I'm not sure if it would be wise for the Republicans to stand in the way of this military and veterans bill... but, who knows what they will do?

    Posted by: Jim | Jul 4, 2013 2:01:15 PM

  24. Forget a Democratic House. Remember that there will be 7 vacated democratic Senate seats coming up for reelection next year....We are f*****d if Repugs control both houses.
    Don't forget to vote.

    Posted by: karen in kalifornia | Jul 4, 2013 3:35:15 PM

  25. Thanks for the excellent analysis and all of your hard work towards marriage equality, Ari. I have two questions.

    1. Between passage of Prop 8 and the lifting of the 9th Circuit's stay, CA recognised but did not perform out of state marriages between SS couples. At least those performed before the passage of Prop 8. Are there any other states that recognise SS marriages but do not perform them?

    2. What is the status if SS married couples who are US citizens living abroad? What is our "state of domicile"? My husband and I were married in CA but live in the UK. Can we finally file our US Federal income tax forms as married?

    Posted by: Keith | Jul 5, 2013 8:41:15 AM

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