How Can The President Help With Only Part of The Country with Same Sex Marriage

 

A Supreme Court ruling this month that could overturn the ban on federal benefits for same-sex couples is presenting the Obama administration with a series of complicated and politically sensitive decisions: how aggressively to overhaul references to marriage throughout the many volumes that lay out the laws of the United States.
MICHAEL D. SHEAR /CNN

Military benefits for same-sex couples, among many other issues, with the outcomes based on whether the couples live in a state that allows them to marry.

Gay rights advocates, aware that a Supreme Court ruling that overturns the 1996 Defense of Marriage Act would be the beginning of their push to have the federal government recognize same-sex marriage, are urging White House officials to plan to modify hundreds of mentions of marriage throughout federal statutes and regulations. Many legal analysts say there is a substantial chance that the Supreme Court will strike down the 1996 law, which in defining marriage as a union between a man and a woman denies federal benefits to same-sex couples.

“We’re going to fight to ensure that legally married gay couples have access to all federal benefits and protections, irrespective of state borders,” said Fred Sainz, a spokesman for the Human Rights Campaign, a gay rights organization in Washington. “When it comes to federal benefits, it shouldn’t matter what side of a state border you live on.”

The court is expected to rule in the next two weeks. Based on the justices’ questions at oral arguments in March, legal analysts predict that the justices will overturn the law on the grounds that marriage is a matter for the states.

If the justices do strike it down, they will sweep aside a law that has for years prohibited gay couples from receiving a vast array of federal benefits that married couples take for granted. But whether gay couples actually get those benefits would depend on where they live — and how vigorously President Obama seeks to change the legal language that determines whether a couple is married in the eyes of the federal government.

For Mr. Obama, who appears eager to have his legacy defined in part by the advancement of civil rights for gay Americans, his administration’s actions after the ruling may be as important as the ruling itself. A spokesman for the president declined to comment on the issue but hinted that the administration might be preparing to act.

“As the court has not yet ruled, it would be premature to speculate about what may happen after a decision is issued,” said Matt Lehrich, a White House spokesman. “The administration will, of course, be prepared to address any implications of the court’s decision.”

Activists, however, are warning gay couples not to expect that federal benefits would arrive immediately, because government agencies vary widely in how they determine whether a couple is legally married.

Some federal agencies, like the Internal Revenue Service and the Social Security Administration, make that determination by looking to the state where a couple lives. Even with the 1996 law overturned, those agencies would deny benefits to gay couples who live in one of the 38 states that do not allow same-sex marriage.

In such cases, the administration would have to change its standard — for example, by defining marriage based on whether a couple is legally married in any state — in order to extend benefits to same-sex couples.

Other agencies, like the Defense Department, already base their decision on the location of a couple’s wedding, regardless of where the couple lives now. The same-sex spouse of a service member would get health care benefits no matter where the couple lives, as long as the two married in one of the 12 states where same-sex marriage is legal.

Gay rights advocates say that the scope of federal benefits that would become available to gay couples in the wake of the court’s ruling is uncertain. There are more than 1,100 places in the federal statutes where rights or benefits are based on a person’s marital status, according to one analysis by advocates for same-sex marriage.

“Without sweeping decisions from the court, we’ll continue to have a patchwork across the country that denies all families equal protection,” Mr. Sainz said.

Opponents of same-sex marriage say the legal questions surrounding the definition of marriage were a key argument behind the passage of the act in the first place. Chris Gacek, a senior fellow at the Family Research Council, said the organization would oppose any effort to impose same-sex marriage on states that do not want it.

“We certainly wouldn’t go for imposing gay marriage on the country administratively,” Mr. Gacek said.

He continued, “Once you open up this can of worms, there are a lot of issues here.”

President Bill Clinton signed the marriage act into law in the months before his re-election in 1996. Because no state allowed same-sex marriage at the time, the law was largely symbolic. Seventeen years later, the situation has changed, with gay couples able to marry in 12 states and the District of Columbia.

In his first term, Mr. Obama sought to do what he could to extend benefits to same-sex couples despite the Defense of Marriage Act. He required that any hospital that receives Medicare or Medicaid payments allow visitation by a patient’s gay spouse. And he ordered relatively small changes in policy affecting the federal work force, which permitted the State Department to issue embassy identification cards to same-sex partners of diplomats.

Now some activists want him to go further if the court overturns the law. But others are being more cautious, citing the politically charged nature of the issue and complex legal questions.

“It’s important that no one get ahead of the court,” said one adviser to gay rights advocates, who asked for anonymity because the court’s decision had not been announced. “People recognize that whatever the court decides will require some complex administrative implementation, which will take some time.”
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