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Post-DOMA, federal government issues memos announcing that benefits for same-sex couples will not be extended to civil unions, domestic partnerships

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By Scottie Thomaston

The Obama administration’s Office of Personnel Management has issued memos making it clear that federal benefits for married same-sex and opposite-sex couples will still only apply to those couples, and benefits will not be given to people in civil unions or domestic partnerships:

The Office of Personnel Management made that announcement in a series of memos to federal benefits administrators and insurance carriers, saying couples who are not legally married “will remain ineligible for most federal benefits programs.” However, any existing benefits provided to domestic partners will remain intact, OPM said.
That means same sex couples living anywhere in the U.S. will qualify for federal-employee benefits as long as they hold marriage licenses from any of the 13 states that recognize same-sex marriage, as well as from the District of Columbia, which has also legalized such unions.

Questions remain about how the administration will treat same-sex couples and domestic partners outside the federal workforce, including with Social Security, tax and veterans’ benefits. The agencies that handle those programs have not issued guidance.

The memos reiterate what was already the law post-DOMA; no changes have been made. They simply offered guidance for particular groups working to implement the changes they are now allowed to enforce without Section 3 of DOMA.

There is one interesting aspect of the decision to explicitly say that the benefits won’t be offered to people in domestic partnerships or civil unions, however. As EqualityOnTrial has written recently, Lambda Legal’s strategy in the New Jersey marriage equality lawsuit has been to point out that with Section 3 of DOMA gone, same-sex couples in New Jersey, a civil union state, aren’t treated equally and are now denied at least 1,138 federal benefits because the state declines to allow these couples to marry:

Before the Windsor decision, same-sex couples in states with marriage equality (for instance, New York) and in civil unions in states like New Jersey were treated the same by the federal government: namely, their marriages were ignored. Although the CURC held that New Jersey’s civil unions did not grant full equality even under state law the way that equal marriage rights would, there was a case to be made–pre-DOMA–that civil unions in New Jersey weren’t all that different from marriage equality in New York. As Lambda Legal writes, that is no longer true:

[A]fter Windsor, there simply can be no question but that same-sex couples in New Jersey are denied the equal benefits expressly guaranteed by Lewis, thus inflicting precisely the indignity which the New Jersey Supreme Court, in that opinion, abhorred.

Lambda Legal is referring here, of course, to the federal benefits which the U.S. government is now in the process of extending to married same-sex couples in the wake of the DOMA decision. In other words, civil unions in New Jersey now prohibit same-sex couples from accessing federal benefits–since the federal government does not recognize couples in civil unions as eligible for such benefits–which these couples could obtain with New Jersey marriage licenses.

The new memos from the federal government echo the facts Lambda Legal has presented, and they seem to offer evidence of the stark legal differences between civil unions and domestic partnerships on the one hand, and marriage on the other. It adds more evidence, from the federal government itself, that the states which continue to offer only civil unions or domestic partnerships but not marriage are not treating same-sex couples similarly to opposite-sex couples.


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