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04/19/2007


Obama Administration Says It Will No Longer Defend Law Barring Gay Veterans from Spousal Benefits

HolderThe Department of Justice won't enforce Title 38, a law barring gay veterans from spousal benefits, the Washington Blade reports:

In a letter dated Sept. 4, U.S. Attorney Eric Holder notifies U.S. House Speaker John Boehner (R-Ohio) of the change in the way the Justice Department will enforce Title 38 of the U.S. code.

“[I]n light of subsequent developments and my recommendation, the President has directed the Executive Branch to cease enforcement of Sections 101(3) and 101(31) of Title 38,” Holder writes. “Decisions by the Executive Branch not to enforce federal laws are appropriately rare. Nonetheless, for the reasons described below, the unique circumstances here warrant non-enforcement.”

The HuffPost adds:

Holder said last year that the Justice Department would no longer defend Title 38 in court. But Wednesday’s announcement went even further, with DOJ finding that the legal basis laid out by the Supreme Court in the DOMA decision should nullify the marriage definition in the provision. Secretary of Veterans Affairs Eric Shinseki said just last week that the spouses of gay veterans weren’t eligible for benefits because no court had found Title 38’s definitions to be unconstitutional.

Writes the White House in a press release:

The new policy means that the administration will no longer enforce statutory language governing the Veterans Administration (VA) and the Department of Defense (DoD) that restricts the awarding of spousal benefits to opposite-sex marriages only. The language, contained within Title 38 of the U.S. Code, has, until now, prevented the Executive Branch from providing spousal benefits to veterans—and in some instances active-duty service members and reservists—who are in same-sex marriages recognized under state law.

In a letter to Congressional leaders, Holder stated that the President’s decision was consistent with the Court’s decision in Windsor in June.

“Although the Supreme Court did not directly 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,” Holder wrote.

The decision not to enforce Title 38 aligns with the Obama administration’s determination last year that two provisions of Title 38 that govern benefits for veterans and their families were unconstitutional as applied to legally married same-sex couples. At that time, the Attorney General informed Congress that the Department would no longer defend the Title 38 provisions, but that the Executive Branch would continue to enforce them. Today’s announcement makes clear that enforcement of the provision in Title 38 defining marriage as between a man and a woman will now cease.

The announcement comes after the House Bipartisan Legal Advisory Group (BLAG) recently decided to stop defending the Title 38 provisions in pending cases. In addition, last week, a federal district court in California held the Title 38 provisions unconstitutional on equal protection grounds. After consideration of these developments and a recommendation by the Attorney General, the President directed the Executive Branch to cease enforcement of the Title 38 provisions.

Previously...
Federal Judge Strikes Down Law Barring Same-Sex Veteran Benefits [tlrd]


Mississippi Joins Texas in Refusing to Process Spousal Benefits for Gay Troops

Yesterday, Towleroad reported that Texas was refusing to comply with orders from the Pentagon to begin offering partner benefits to troops with same-sex spouses based on the state's law banning same-sex marriage.

MississippiNow Mississippi has joined them, saying it won't issue applications from state-owned offices, the AP reports:

Texas and Mississippi appeared to be the only two states limiting how and where same-sex spouses of National Guard members could register for identification cards and benefits, according to an Associated Press tally. Officials in 13 other states that also ban gay marriage — including Arizona, Oklahoma, Florida, Michigan and Georgia — said Tuesday that they will follow federal law and process all couples applying for benefits the same.

Texas said it would not deny the benefits, they just needed to be collected from a federal office, an inconvenience of several hours travel for some service members and their families.

As far as Mississippi goes:

Mississippi National Guard spokesman Tim Powell said the main factor in determining where same-sex spouses could apply for benefits came down to the property owner. Powell said only National Guard offices on federal property would accept the applications in Mississippi, which also constitutionally bans gay marriage.

“It is our intent to provide benefits and services to our men and women in uniform and at the same time abide by federal and state statutes,” Powell said.


Federal Judge Strikes Down Law Barring Same-Sex Veteran Benefits

Tracey and Maggie Cooper-Harris

A little over two weeks ago we told you about the Pentagon extending social security benefits to same-sex couples, even if they were just couples in states where their marriage was legal. Last week, we told you about the Alaska State Personnel Board changing the definition of 'family' to include same-sex couples, and early this week we informed you that the Texas Supreme Court will be hearing a case this November to determine if the state will recognize out-of-state same-sex marriages as legal. Today is California's turn.

Plaintiffs Tracey and Maggie Cooper-Harris brought their case before the California Supreme Court in February 2012, alleging that DOMA and the resulting denial of veteran benefits to same-sex couples were discriminatory and unconstitutional. On Thursday Judge Consuelo B. Marshall ruled that the definitions in Title 38 of the U.S. Code that limit provision of veterans’ benefits to opposite-sex couples have no rational basis. This is a major step forward for members of the armed forces in legal same-sex marriages as their husbands and wives are now entitled to all of the VA benefits and protections that are normally given to the spouses of heterosexual spouses. According to the Defense Department, same-sex couples can start receiving these benefits this Tuesday on September 3rd.

And the dominoes keep falling.


NOM Blasts IRS Policy Giving Federal Tax Recognition to Gay Married Couples Regardless of State Laws

Brian BrownYesterday, we reported on the U.S. Department of Treasury's decision to recognize gay married couples for tax purposes regardless of the state laws regarding marriage in which they reside. Prompted by the recent SCOTUS ruling on DOMA, this new policy will provide tax filing uniformity for all legally married same-sex couples nationwide.

As if on cue, National Organization for Marriage president Brian Brown issued a statement denouncing the change in policy, claiming it is yet another government attempt to force gay marriage on an "unwilling public."

"The Treasury Department is grossly overstepping its authority," said Brown. "This is a nation of laws. Only Congress has the authority to change the law....[the] Obama administration is intent on forcing same-sex 'marriage' on an unwilling public."

Yawn.


What The Death Of DOMA Means For Medicare

SiegelkopelovToday has already seen the unprecedented advancement of rights for same-sex married couples with the U.S. Department of Treasury's decision to extend tax benefits to same-sex married couples, regardless of the state in which they live. This is, or course, in response to the U.S. Supreme Court's decision to strike down Section 3 of the Defense of Marriage Act. Now, the Department of Health and Human Services is following suit, and has released guidelines for what the end of DOMA means for Medicare.

Same-sex married couples will now have access to nursing home care through their Medicare-funded private insurance, a benefit that has always been available to opposite-sex married couples. According to the Washington Blade, in the days before DOMA was struck down:

"Seniors with Medicare Advantage previously may have had to choose between receiving coverage in a nursing home away from their same-sex spouse or disenrolling from their plan to be with their loved one. The latter option would mean paying more out of pocket for care."

Thankfully, those days are now over. Danielle Moon, director of the Medicare Drug & Health Plan Contract Administration Group, lays out The Center for Medicare & Medicaid Services' new post-DOMA interpretation of the term "spouse":

"In light of the Supreme Court’s decision in Windsor, CMS believes it would be impermissible to interpret the term ‘spouse,’ as used in section 1852(l)(4)(A)(iii), to exclude individuals who are in a legally valid same-sex marriage sanctioned by a state, territorial or foreign government...MA organizations therefore are required, effective immediately, to cover services in a SNF in which a validly married same sex spouse resides to the extent that they would be required to cover the services if an opposite sex spouse resided in the SNF."

Fed-dept-of-health-and-human-servicesIn a news statement accompanying the new guidelines, Secretary of Health & Human Services Kathleen Sebelius noted that this new guideline is the first of many more that will be on the way:

“HHS is working swiftly to implement the Supreme Court’s decision and maximize federal recognition of same-sex spouses in HHS programs. Today’s announcement is the first of many steps that we will be taking over the coming months to clarify the effects of the Supreme Court’s decision and to ensure that gay and lesbian married couples are treated equally under the law.”

Better yet, Moon has clarified that the new guideline applies to couples, across the country, even if they live in a state that does not yet recognize marriage equality:

“The foregoing analysis applies to individuals of the same sex who are domiciled in a state or territory that recognizes their relationship as a marriage. It also applies to individuals of the same sex who were legally married in a state or other jurisdiction without regard to whether they are domiciled in a state or territory that recognizes their relationship as a marriage.”

You can read the full release, via the Washington Blade, HERE.


Gay Married Couples to Get Federal Tax Recognition Regardless of State Where They Live

In a decision prompted by the recent SCOTUS ruling on DOMA the U.S. Department of the Treasury said today it would recognize gay married couples for tax purposes regardless of the state laws regarding marriage in which they reside, the HuffPost's Sam Stein reports:

LewThursday’s ruling by Treasury Secretary Jacob Lew provides a uniform policy for the IRS; the state of celebration -- where the wedding took place -- now trumps the state of residency when it comes to federal tax status for same-sex married couples.

“Today’s ruling provides certainty and clear, coherent tax filing guidance for all legally married same-sex couples nationwide. It provides access to benefits, responsibilities and protections under federal tax law that all Americans deserve,” Lew said in a statement. “This ruling also assures legally married same-sex couples that they can move freely throughout the country knowing that their federal filing status will not change.”

The new policy, which was first shared by Lew in a conference call that included LGBT advocates, holds a bit of political significance. It was the burden of federal tax law on same-sex couples, after all, that prompted the legal challenge to DOMA in the first place.

Adds Stein:

Under the new Treasury policy, all federal tax provisions where marriage is a factor, including filing status, employee benefits, IRA contributions, earned income, child tax credits, and income, gift and estate taxes, will apply to same sex couples regardless of where they live. On the flip side, gay couples also will now be subjected to the so-called marriage penalty, in which some (usually upper-middle class) joint filers incur a higher tax burden than they would if they filed as single people.

More from the Treasury Department:

Any same-sex marriage legally entered into in one of the 50 states, the District of Columbia, a U.S. territory, or a foreign country will be covered by the ruling. However, the ruling does not apply to registered domestic partnerships, civil unions, or similar formal relationships recognized under state law.

Legally-married same-sex couples generally must file their 2013 federal income tax return using either the “married filing jointly” or “married filing separately” filing status.

Individuals who were in same-sex marriages may, but are not required to, file original or amended returns choosing to be treated as married for federal tax purposes for one or more prior tax years still open under the statute of limitations.

Generally, the statute of limitations for filing a refund claim is three years from the date the return was filed or two years from the date the tax was paid, whichever is later. As a result, refund claims can still be filed for tax years 2010, 2011, and 2012. Some taxpayers may have special circumstances (such as signing an agreement with the IRS to keep the statute of limitations open) that permit them to file refund claims for tax years 2009 and earlier.

Additionally, employees who purchased same-sex spouse health insurance coverage from their employers on an after-tax basis may treat the amounts paid for that coverage as pre-tax and excludable from income.

How to File a Claim for Refund Taxpayers who wish to file a refund claim for income taxes should use Form 1040X, Amended U.S. Individual Income Tax Return. Taxpayers who wish to file a refund claim for gift or estate taxes should file Form 843, Claim for Refund and Request for Abatement.

For information on filing an amended return, go to Tax Topic 308, Amended Returns at http://www.irs.gov/taxtopics/tc308.html or the Instructions to Forms 1040X and 843. Information on where to file your amended returns is available in the instructions to the form.


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