Tag Archives: same-sex marriage

What Does The Supreme Court's Striking Down Of The Defense Of Marriage Act Mean For Your Social Security Disability Benefits?

The United States Supreme Court struck down the Defense of Marriage Act

Today’s post comes from guest author Barbara Tilker, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

On June 26, 2013, the Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) violated the Fifth Amendment and is therefore unconstitutional. While DOMA was in effect, the federal government did not recognize same-sex marriages that were performed in states where they are legal, such as New York.  This meant that the Social Security Administration was unable to pay certain benefits to individuals who would have otherwise been entitled to them if they were married to someone of the opposite sex. As this part of the law has been struck down, validly married same-sex couples should be treated identically to opposite-sex couples by the Social Security Administration. 

There are several Social Security benefits that married individuals are entitled to that unmarried individuals are not.  The two largest programs are survivor benefits and disabled widow(er)s benefits. A surviving spouse can now be entitled to benefits on a deceased spouse’s earnings record once they attain age 60 or are disabled and age 50. These benefits, once only available to opposite-sex couples, should now be extended to same-sex couples as well. Stepchildren may now also be entitled to benefits on a worker’s earnings record, if the worker is either deceased or receiving Social Security retirement or disability benefits. 

The Social Security Administration relies on state law to determine if a person was legally married. Social Security looks at the law of the state where a person was living at the time of their death to determine if their marriage was valid. It’s possible that a same-sex couple could be married in New York (or another state where same-sex marriage is legal) and then move to a state that does not recognize same-sex marriage.  According to Social Security’s current rules, the Administration would look to the rules of the state where the person lived at the time of their death to determine if the marriage was valid. 

At first glance, this seems to mean that validly married same-sex couples could be denied benefits they would have been entitled to if they didn’t move. However, Social Security also recognizes a “deemed marriage” provision. In simple terms, if both partners believed themselves to be married, and acted like a married couple, and the only reason they are not validly married is “a legal impediment not known to the applicant” at the time of the marriage ceremony, Social Security will consider the marriage to be valid for benefit purposes.

We don’t know yet how Social Security will enact these provisions or what the end result will be. However, it appears clear to us that many people who were being denied benefits because of who they love will now be entitled to them. 

Overturning DOMA Will Increase LGBT Rights in the Workplace

Today’s post comes from guest author Jon Rehm from Rehm, Bennett & Moore.

The impact of the U.S. Supreme Court decision overturning the Defense of Marriage Act will be felt in the workplace.

First of all, overturning DOMA will expand anti-discrimination protections and partner benefits to lesbian, gay, bisexual and transgender employees who are employed by the federal government.

Overturning DOMA will also probably benefit LGBT employees not working for the federal government. One argument is that banning LGBT discrimination in federal employment will ease acceptance of extending anti-discrimination protections to lesbian, gay, bisexual and transgender workers in the workforce as a whole. Legislation has been introduced that would explicitly extend protections of federal and state fair-employment statutes to LGBT workers.

From a political point of view, explicitly extending fair-employment statutes to cover LGBT workers probably won’t be feasible until at least 2015, depending on the outcome of the 2014 elections. Politicians in “red states” in both parties may be wary of conservative backlash if they support extending fair-employment practices. That same reticence will probably be displayed by Senate Majority Leader Harry Reid who needs to Democrats to win in several conservative states in order to hold on to the majority.

But the recent decision overturning DOMA may further open the door to judicially expanding employment statutes to lesbian, gay, bisexual and transgender employees. Justice Anthony Kennedy and the liberal bloc struck down DOMA on Fifth/14th Amendment equal-protection grounds. If states can’t discriminate against gays in marriage on equal-protection grounds, it doesn’t make logical sense that the Fifth/14th Amendment allows employment discrimination against LGBT workers.

It is arguable that LGBT people already have the protections of our fair-employment laws under the theory of sex-plus discrimination that prohibits discrimination based on sexual stereotypes. In Smith v. City of Salem, Ohio, the Sixth Circuit Court of Appeals extended protections under the sex-plus theory to a male firefighter who started identifying as a woman. In Lewis v. Heartland Inns of America, the conservative Eighth Circuit Court of Appeals upheld a finding of possible finding of sex discrimination for a woman who was described by her boss as having “an Ellen DeGeneres kind of look.” Though the Eighth Circuit didn’t make any reference to sexual orientation in the decision, it is obvious that “Ellen DeGeneres” is a code word for “lesbian.” It makes sense to me that opposite-sex attraction is a stereotype for each gender and that discrimination against LGBT people should be covered under the theory of sex-plus discrimination. I think courts will be increasingly be forced to rule that way in the wake of the decision on DOMA stating that discrimination against gays and lesbians runs afoul of the Fifth/14th Amendments. Another possible factor working in favor of expanding fair-employment protections to LGBT workers are recent Supreme Court decisions interpreting federal fair-employment law favorably for employers. It’s easy to conceive of a moderately conservative judge in the mode of Justice Kennedy judicially extending fair-employment law to gays and lesbians with the understanding that it will likely be more difficult employees to win fair-employment suits.

Until Congress and/or our state legislatures act, LGBT employees are not guaranteed equal rights at work. But thanks to the decision overturning DOMA, I think courts will be more open to extending workplace rights to the LGBT community, regardless of what is done in the legislative branch.

Should Same-Sex Survivors Be Entitled To Death Benefits?

In Alaska, a woman is seeking worker’s compensation death benefits after her same-sex partner was murdered at work (See article in Business Insurance.)  Ordinarily and in most states, the dependent spouse of a worker killed on the job is entitled to monetary compensation as a “death benefit.” Here, the surviving same-sex woman is arguing that is unconstitutional to prevent her from collecting death benefits that she would have been awarded had she been able to marry her same-sex partner. The resolution of this issue should be interesting.

In Wisconsin, same-sex domestic partners are allowed to collect depending death benefits under the Wisconsin workers’ compensation law if certain criteria are met. If an injury causes death, an individual wholly dependent on him or her for support (e.g., live-in spouse, dependent child under the age of 18) is eligible for a death benefit that is equal to four times the worker’s annual wages. Effective July 1, 2009, amendments to the Worker’s Compensation Act include dependent’s death benefits for same sex domestic partners, as defined a new Chapter 770

This does not mean that same-sex partners living with each other or in long-term committed relationships are automatically entitled to a death benefit. Same-sex partners must actually register as “domestic partners” with the government. Specifically, to be a dependent for purposes of worker’s compensation, eligible domestic partners must do the following: (1) Satisfy all the criteria for forming a domestic partnership contained in §770.05; and (2) Sign and file a declaration of domestic partnership with the office of the registrar of deeds of the county where they reside. The criteria for forming a domestic partnership contained in §770.05 includes: the individuals must be 18 years old, the individuals must be of the same sex, not married or in a domestic partnership with anyone else and have the intent of sharing a residence.

Therefore, if the Alaska case occurred in Wisconsin and the same-sex partners had registered as “domestic partners,” the surviving partner would be entitled to death benefits under Wisconsin workers’ compensation law.