Eric Holder Releases Report on DOMA Ruling Implementation, Notes Ongoing Discrimination by VA and SSA

Attorney General Eric Holder on Friday released a formal report on a yearlong effort by the Department of Justice and other federal agencies to implement the Supreme Court's decision striking down DOMA:

Holder“I am pleased to report that agencies across the federal government have implemented the Windsor decision to treat married same-sex couples the same as married opposite-sex couples for the benefits and obligations for which marriage is relevant, to the greatest extent possible under the law," Attorney General Holder wrote in the memorandum to President Obama. “The implementation of the Windsor decision across the entire federal government is an accomplishment that reflects countless hours of hard work, cooperation, and coordination across agencies. As additional issues arise, we will continue to work together to uphold this Administration’s fundamental commitment to equal treatment for all Americans, and to extend this fundamental equality to all Americans.”

At the President’s direction last year, a team of lawyers—led by Assistant Attorney General for the Civil Division Stuart Delery—began working with lawyers for other federal agencies to seek to extend federal benefits to same-sex marries couples, consistent with the Windsor decision. The department and the agencies have made many announcements on a rolling basis over the last several months. To date, for instance, the administration has announced that same-sex marriages will be recognized for all federal tax purposes, that health insurance and retirement benefits are available for same-sex spouses of all federal employees, and that the Defense Department will provide spousal benefits for same-sex spouses of military servicemembers.

In conferring these and other benefits, agencies have chosen to recognize marriages as valid based on the law of the jurisdiction where the marriage took place (the place of celebration), regardless of where the couple currently resides. As noted in the Attorney General’s report, however, two agencies—the Social Security Administration and Department of Veterans Affairs (VA)—are prohibited by federal statute from adopting a “place of celebration” rule for certain programs of critical importance to millions of Americans. The administration looks forward to working with Congress to fix these parts of the law to ensure that Americans who rely on these programs can obtain these essential benefits no matter where they live.

In the meantime, both the VA and Social Security Administration have sought to extend benefits to the absolute maximum extent, seeking out all legally available authority. As a result, for instance, the administration is able to announce today that the VA Acting Secretary has determined that he will exercise his broad statutory discretion in the area of burial benefits to designate any individual in a committed relationship for burial in a national cemetery, which will allow for the inclusion of same-sex spouses where the domicile provision would otherwise govern. In addition, SSA will extend survivor benefits, lump sum death benefits and aged spouse benefits to same-sex couples if one partner could inherit from the other partner on the same terms as a spouse under state law. This expands the number of states in which these benefits can be extended.

KendellNational Center for Lesbian Rights Executive Director Kate Kendell reacts:

"In the past year, the Department of Justice has moved aggressively and diligently to implement the Supreme Court's decision in Windsor and to provide equal treatment to married same-sex couples under federal law. We are grateful to President Obama for his unparalleled leadership and support of full equality for LGBT people. Thanks to those efforts, same-sex couples and their children now enjoy an unprecedented degree of protection and security under federal law.

At the same time, today's announcement that same-sex spouses in states that refuse to respect their marriages will be denied the Social Security benefits they have paid for and earned, and that LGBT veterans who have served this country will be treated as second-class citizens, underscores how far we have yet to go to achieve true equality. We call on the administration to redouble its efforts to stand up for these families and to support litigation to challenge discriminatory and unconstitutional state laws that exclude same-sex couples and their children from the protections of marriage. This is one country, and every American who pays into the Social Security system or who serves in our nation's armed forces should be treated with equal dignity and respect. 

We call on President Obama to amplify his support for full equality and to stand with same-sex couples who are challenging discriminatory marriage bans across the nation, from Utah to Michigan to Tennessee."

UdallSenator Mark Udall (D-CO) reacted to the Obama administration's support for his bills to correct the discrepancies:

"Treating certain married couples as inferior under federal law isn't just wrong — it's discriminatory. The U.S. Supreme Court agreed last year and set a high standard for equality, and Congress should conform the law to the principle that the federal government shall not create unequal classes of marriage," Udall said. "I'm gratified the White House has committed to supporting equality by announcing support for my bills to end discriminatory practices based on sexual orientation. I won't rest until all married couples — including married same-sex couples living in Colorado — are treated equally under federal law."

Meanwhile, the VA has provided guidance to same-sex married couples seeking benefits. Read it HERE.

Social-Security Administration guidance is HERE.


  1. says

    REALITY CHECK. We salute the Administration for as far as it went in fulfilling its obligation to bring their current practices in line with the Supreme Court’s overturn of DOMA in the “Windsor” case. However, despite that and two other court decisions last year that declared that the sections of US Code Title 38 which discriminate against same-sex veterans were unconstitutional, AND the Administration’s announcement last September that, because of those cases, they would no longer enforce Title 38 §§ 101(3) & (31) that define “spouse” as someone of the opposite sex, they inexplicably, illogically, and indefensibly continue to enforce the section that means that even if you were married in a state where it was legal but lived in a state where it isn’t or at the time you applied for benefits you are NOT married in the eyes of the VA. This despite the fact that US Attorney General Eric Holder said last fall that: “Although the Supreme Court did not address the constitutionality of the Title 38 provisions in ‘Windsor’, the reasoning of the opinion strongly supports the conclusion that those provisions are unconstitutional under the Fifth Amendment. [C]ontinued enforcement of the Title 38 provisions pending further judicial review is unwarranted [and] would likely have a tangible adverse effect on the families of veterans and, in some circumstances, active-duty service members and reservists, with respect to survival, health care, home loan, and other benefits.”

    That is exactly what is continuing to happen, and, yet again, the Administration is schizophrenically choosing to do nothing while hiding behind insistence that only Congress can end such arbitrary discrimination. This despite the fact that in addition to not enforcing the rest of Title 38 without Congressional approval, they have admirably and boldly refused to enforce (as have previous administrations) other federal laws they feel unconstitutionally unfair such as those against medical marijuana users and dispensers in states that allow it. And in 2009 then-Homeland Security Secretary Janet Napolitano announced she was suspending enforcement of an immigration law that was unfair to STRAIGHT foreign-born spouses to, quote, “give Congress time to fix the law if it chooses to.” WHY isn’t the Obama administration doing the same in regard to every statute that is clearly unconstitutional in the wake of the “Windsor” decision just as courts in state after state are declaring that their bans on marriage equality cannot be enforced because of it?

    This is not just “never satisfied” Michael Bedwell’s belief but also that of US Senators such as Barbara Boxer, Mark Udall, Jeanne Shaheen, Richard Blumenthal, Tammy Baldwin, Jeff Merkley, and Chris Coons who wrote AG Holder in January saying: “No veteran should face this type of discrimination. We respectfully ask the DOJ to direct the VA to apply section 103(c) in a manner consistent with the ‘Windsor’ decision’s mandate to respect the lawful marriages of same-sex couples . . . and avoid a situation where the federal government is recognizing a person’s marriage one day and ignoring it the next.”

    Finally, barely six months ago, the President said in his State of the Union address, emphasis mine, that “wherever and whenever I can take steps WITHOUT LEGISLATION to expand opportunity for more American families that’s what I’m going to do.” Bravo for his announcing plans to use his executive authority to raise the minimum wage for federal contract employees, create a new government-backed private retirement savings plan, speed up connecting schools to wireless broadband, and, yes, finally keep his years-old promise to order federal contractors not to discriminate against LGBTs. But why wait for Congress to repeal unconstitutional laws denying gay military families the benefits they deserve when he knows, EVERYONE KNOWS that ain’t gonna happen during the rest of his Presidency? Legally married gay veterans are literally dying waiting for their spouses to be treated equally by the nation they fought for. What is the President, their Commander-in-Chief waiting for? A sign from a burning bush of Harvey Milk stamps?

  2. I wont grow up says

    The VA and the SSA discriminate against gay people say it isn’t so, the next thing you’ll try to say is the IRS investigates private citizens, public officials and members of the media for no reason and then lies about it to congress. Shocking!!!

  3. simon says

    Mr. Bedwell:
    Always the same question. What is Obama waiting for? Of course there is nothing wrong pushing him harder. The presidency must be an easy job in which he has a lot of time to play golf. I don’t have that kind of experience governing even a small company. I guess neither do you. Let’s see, there are economic programs, environmental programs, Iraq, Iran, Russia, China etc etc. I guess he must have forgotten something along the way. It it were not for those fundraisers, he might not have done some of the items in that report.
    By all means, push him harder. In the meantime, thank you President.

  4. TKinSC says

    “have implemented the Windsor decision”

    Um, implementing the Windsor decision doesn’t require replacing “state of domicile” rules with “place of celebration” rules. That was all done under the lawless rule of the Obama administration.

    Not that I mind too much, since it means two straight BFFs can access federal marriage benefits while still living the single life. But let’s not pretend that this was all just done to satisfy the mandate of Windsor.

  5. simon says

    Get away from your Mom’s room and away from her computer. A man and a woman can do the same thing from time immemorial i.e. get Federal benefits while maintaining their separate single lives in case you were just born yesterday.
    Sure these things did happen but probably not too often. People, including straight couples enter marriages for many reasons, some maybe infatuation, some maybe financial which by the way is what “traditional marriage” is all about.
    The last time I checked, the application form does not have the question asking why one get married. It is perfectly legal to apply for a license for both straight and gay couples even if they don’t plan to consummate their marriage. Of course it only matters if one of them is from a foreign country.
    Does that answer your question, Moron?

  6. simon says

    As for the “lawlessness” of this admin, there is in the US what we call the separation of powers. Just for those who are foreign-born or from another planet. That is why Holder was very cautious in implementing the DOMA decision. As said in the article, some SS and VA parts were not implemented for fear of infringing on some federal statutes.
    When someone uses the big word “lawlessness”, it is only something that exists in their imagination due to political bias, not because what is actually said in law books.

  7. says

    @ Simon: sadly, yet again, you prove that you get a kind of brain freeze when deepthroating the Administration’s phony excuses. For no more than them, can you defend their refusing to stop enforcing one part of a federal statute the courts have ruled unconstitutional at the same time they ARE NOT enforcing another part. Hypocrisy and the illogical is no more defensible in their fish wrap than anyone else’s.

  8. simon says

    Mr. Bedwell:
    Did you read what Holder said? Those parts he did not implement may infringe on certain Federal statues due to the remaining parts of DOMA still in the books. I bet you must be more of an expert than the whole department of DOJ lawyers. Of course you may always look at it from a conspiracy angle which I think is ridiculous. Why? Because of animus? Or of course money again. They hold it back as some kind of chips for getting money in future fundraisers.
    Don’t be too negative on everything. It makes life unbearable.

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