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After DOMA, gay couples still would not receive many federal benefits

The Supreme Court’s Windsor v. United States decision, which ruled a key part of the Defense of Marriage Act (DOMA) “unconstitutional,” was celebrated across the country by the gay-rights community, but gay-rights advocates warn that same-sex couples may not be eligible for all federal marriage benefits.

“First of all, let's savor the victory,” said House Minority Leader Nancy Pelosi (D-CA) on Meet the Press, of the court’s ruling that ends federal policy to officially describe marriage as between a man and a woman.

But, Pelosi acknowledged, “We still have work to do. The president as you know has directed his administration to go through-- the federal laws that affect-- marriage equality, couples in our country. And yes, we would like to see it be the law of the land upheld as a constitutional right and no discrimination. No discrimination, that's what we're about as a country.”

Not all of DOMA was struck down. For example, Section 2 of DOMA, which says states can decide not to recognize the marriages of gay couples who wed in other states, still stands.

“The decision means that same-sex married couples will have access to some federal benefits, but will not have access to the full range of marriage benefits due to state marriage bans,” said Mark Daley, a spokesperson for the National Gay and Lesbian Task Force.

After last week’s decision, California Sen. Dianne Feinstein (D) and New York Rep. Jerry Nadler (D) reintroduced their Respect for Marriage Act, which seeks to repeal DOMA entirely and amend it to read:

“For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.”

In other words, the federal government would recognize marriages of gay couples, as long as they were married in a state where same-sex marriage is legal. But even that likely would not be enough to make gay couples eligible for the full slate of federal benefits.

There are more than 1,000 federal laws relating to marital status, including Social Security, Medicaid, and federal tax benefits, according to Gay and Lesbian Advocates and Defenders, better known as GLAD, a non-profit legal rights organization based in New England. And, often, an employee’s “place of domicile” or primary residence determines whether a person may receive spousal benefits.

Here are some examples:

Family and Medical Leave for Non-Federal Employees: Existing FMLA regulations look to an employee’s state of primary residence to determine whether a person is considered a “spouse.”

Federal Taxes: The IRS has historically used the “domicile” rule, like the FMLA, to assess marital status.

Medicaid: It’s possible that some states will provide hardship protection for partners of a person in long-term care, but eligibility for other Medicaid protections is also dependent on state recognition of marital status.

Social Security: Family and spousal protections relating to Social Security use a wage earner’s primary state of residence as guidance for marriage recognition.

Veterans: Spousal benefits for veterans are more lenient, but there are still instances in which benefits are not granted. If a same-sex couple lives in a state that recognized their marriage when they married, but moved to a non-recognition state by the time benefits took effect, they would be considered married and given the respective benefits. But if a gay couple traveled to a recognition state to marry and continued to live in a non-recognition state after their wedding, benefits would not be given.

“People are going to need to consult lawyers who have the expertise in family law,” said Robert Rosendall, president of the Gay and Lesbian Activists Alliance (GLAA). “I think that couples that are facing these situations really need to look around and find somebody who is a legal expert who can advise them, because it is not obvious and the landscape is going to change out from under us.”