Historic rulings show work remains for marriage equality here

The military implemented “Don’t Ask, Don’t Tell” repeal in September 2011. Last week, the Supreme Court struck down as unconstitutional Section 3 of DOMA, which barred federal recognition of same-sex marriages.

Although most of Dellamura’s co-workers welcomed his partner, Aaron Austin, when he no longer had to hide their relationship, he still felt unequal because Austin could not receive the benefits afforded to a military spouse.

“Because of the Supreme Court decision, I finally feel appreciated but more importantly, my family feels appreciated,” Dellamura said.

The couple may now turn a trip this month to visit family in Connecticut, where gay marriage is legal, into a chance to officially say “I do.”

“I knew I wanted to marry Chris before the ruling, but the ruling became a catalyst to really putting the wheels in motion,” said Austin, who is also now thinking about expanding their family.

“It makes me way more open to the idea of adopting and raising children because I know they will have the protections that straight service members’ children have,” he said. “It just opens so many doors for us.

“Things that straight service members probably take for granted mean so much to us now that we are equal.”

As a couple who lives in Georgia, which still refuses to recognize same-sex marriage, but who will be married in a state that does, Dellamura and Austin will still receive full military benefits because the military bases its definition of who is married on the state where the ceremony was performed.

In addition to military spousal benefits, same-sex couples — including those who live in Georgia — will also get the right to sponsor a spouse for immigration and to receive spousal benefits if they are federal employees.

But other federal benefits of marriage will not automatically be awarded to legally married gay couples who live in Georgia, because some federal statutes instead base their decisions on the state of “domicile,” or where the couple lives. These include Social Security spousal benefits, Medicare and Medicaid, and coverage under the Family Medical Leave Act.

So while the Supreme Court DOMA decision was a huge step forward, same-sex couples living in states like Georgia won’t get many of the benefits that will now be available to those who live in marriage equality states.

Victories historic, but incomplete

In rulings that had been nervously anticipated for months, the Supreme Court handed down a pair of victories for marriage equality June 26 — not only striking the key part of the federal Defense of Marriage Act as unconstitutional, but also issuing a ruling in a challenge to California’s Proposition 8 that allowed gay marriage to resume in that state.

In the most sweeping decision, the Supreme Court ruled 5-4 that the Defense of Marriage Act’s ban on federal recognition of same-sex marriages is unconstitutional.

“DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal,” Justice Kennedy wrote for the majority.

In a separate case, Hollingsworth v. Perry, the court also ruled 5-4 that supporters of California’s Proposition 8, the ballot measure that ended gay marriage in the state, did not have standing to defend the law in court.

It was a victory for gay Californians, as the court remanded the case back to the district court, which had previously thrown out the law. Gay couples began marrying again in California on June 28.

The pair of decisions sparked jubilation around the country, including in Atlanta, where hundreds packed the corner of 10th Street and Piedmont Avenue on the evening after the decisions were released, carrying signs and banners as cars honked their support.

But even on the Day of Decision, as it was dubbed, local advocates were already looking to the future of what the rulings would mean in Georgia.

“We can celebrate for our colleagues and loved ones in California and the twelve other states affected by this ruling today,” Jeff Graham, executive director of statewide LGBT group Georgia Equality, said then. “Tomorrow we begin the process of building a movement to recognize our own marriages here in Georgia.”

Next steps for advocacy

In the wake of last week’s court decisions, activists around the country assessed how they would push forward for marriage equality — even in the South.

Alabama State Rep. Patricia Todd, the only openly gay member of the state’s legislature, told the Montgomery Advertiser she plans to marry her partner in Massachusetts in September, then push for their marriage to be recognized in Alabama, most likely through a court challenge.

On July 1, Equality Florida, a statewide LGBT advocacy group, announced it is seeking plaintiffs to sue for marriage rights there.

Here in Georgia, activists do not have specific plans to pursue marriage equality either through the courts or through a legislative effort to repeal the ban in the state constitution, but they haven’t ruled either out.

Graham said Georgia Equality has already received calls from gay couples who are interested in suing and the organization is keeping a database of that information in case they should decide, working with other groups like Lambda Legal, to pursue that option.

Greg Nevins, supervising staff attorney in Lambda Legal’s Atlanta office, noted that lawsuits are already underway in other jurisdictions and have to be chosen carefully to try to win broad, precedent-setting decisions.

“These cases are not as easy as rolling out of bed, going to the clerk’s office, applying for a marriage license, getting denied, filling out some paperwork — and then eventually justice will come,” Nevins said. “It is not something to be undertaken lightly.”

Georgia Equality has also sought information on what it would cost for polling and focus groups to determine the best messaging to build popular support for marriage equality here; initial estimates are about $50,000, Graham said.

“We have to be serious about working in a smart, strategic manner and building an infrastructure the likes of which we have never seen here in Georgia,” Graham said. “I do believe we can do that, but it is not going to happen overnight.”

For now, Georgia Equality’s first priority remains passage of the Fair Employment Practices Act, a bill to ban job discrimination against state employees based on sexual orientation and gender identity.

“It’s a legislative battle that we do feel we can win in a relatively short period of time,” Graham said, noting that no state has enacted marriage equality without first approving some sort of statewide employment non-discrimination policy.

State Rep. Karla Drenner (D-Avondale Estates) was Georgia’s first openly gay state lawmaker and is now one of three openly lesbian members of the Georgia House. In 2004, she led the unsuccessful effort to stop the state constitutional amendment to ban same-sex marriage.

Drenner is also lead sponsor of the Fair Employment act, and said that while she “would love” to introduce legislation to start the process of repealing the state constitutional ban on gay marriage, she wonders whether pursuing both at the same time will be productive.

“There is the possibility that it somehow bleeds over into the [employment] bill where we have a huge number of signatures and support, so they mire the two issues together and neither one moves forward,” Drenner said.

Another possibility is that the GOP leadership lets the repeal bill move forward, but it is defeated by Georgia voters — a likely outcome, at least in the short term, as a June 26 poll found 61 percent of state voters oppose legalizing same-sex marriage.

“If we put it on the ballot again to overturn it and we lose, then what do we say?” Drenner asked. “Oops, sorry, we want to wait a little longer.”

Both Drenner and Graham stressed that Georgians don’t need a specific court case or a bill in the legislature to do the work of telling the stories of their relationships, which will build support for marriage equality among their friends and families.

“It’s important to remind everyone that a lot of the public education to be done doesn’t require a big public strategy,” Graham said. “It just requires people to speak openly and from their hearts.”

‘Unbridled joy’

As LGBT advocates weigh the next steps for achieving full marriage equality, Georgia same-sex couples are weighing the next steps for their relationships.
For some, that means rejoicing in new benefits they will receive thanks to the Supreme Court’s DOMA decision.

Decatur residents Stephanie Bortz and Kristy Davino have been together for 12 years. The couple plans to marry in New York in the next year.

Their decision to marry is not based on the fact that it will allow Davino to have access to federal employee spousal benefits through Bortz’ job as a licensed clinical social worker at the Veterans Administration hospital here, but it will give them options they didn’t have in the past, Bortz said.

“She could resign from her employment and go back to school and be on my health insurance,” said Bortz, who acknowledged she cried when the ruling was announced. “She could utilize gym and employee assistance programs, as any opposite sex spouses would be entitled.”

For other couples, the DOMA decision means they can move forward with relationships without obstacles they would have faced before.

Atlanta attorney Jeff Cleghorn met David Ruiz online last August. Because Ruiz lives in Mexico, the couple has had to pursue their binational relationship through frequent trips and Skype.

While they are not yet ready to marry, the fact that Cleghorn would not be able to sponsor Ruiz for immigration if they reached that point had begun to weigh on them.

“Over the months things had developed nicely between us, which led to an increasing ‘what do we do now?’ kind of anxiety,” said Cleghorn, who described his reaction to the Supreme Court ruling as “unbridled joy.”

“We are grateful to now at least have a legal pathway to follow, should we decide to take that step.”

Your rights after the Supreme Court rulings

There are approximately 1,100 federal benefits related to marriage, as well as additional state benefits.

The Supreme Court’s ruling overturning Section 3 of the Defense of Marriage Act means that same-sex married couples who live in states with marriage equality will be eligible for all of these benefits.

But for couples in states like Georgia which refuse to recognize same-sex marriage, the picture is much more complicated.

Even if you travel to a state where it is legal to marry, if you live here, you may not receive some federal benefits. That’s because some federal spousal benefits are based on whether you marriage is legal in the state where it was entered, and some are based on the state where you live.

Here is a rundown of some of the biggest benefits and how it appears that they will be impacted. Keep in mind that it will take weeks, if not months, for federal agencies and legal experts to fully understand and respond to the court’s decision.

What you definitely get


U.S. citizens can sponsor their spouses for immigration. Under DOMA, binational same-sex couples could not access this right, leading to tragic stories of partners who were deported or who had to move out of the United States to be together.

On July 1, Secretary of Homeland Security Janet Napolitano issued a statement confirming that “effective immediately,” immigration applications for same-sex spouses will be treated the same as opposite-sex spouses.

While you should still consult an immigration attorney to discuss your specific situation, it should not matter that you live in a state that does not recognize your legal marriage from another state, as immigration law focuses on the “place of celebration,” not the state of residence.

Federal civilian employees

Spouses of federal employees are eligible for a host of benefits, including health, vision, dental and group life insurance, coverage to care for spouses under the Family Medical Leave Act, and more.

A spokesperson for the federal Office of Personnel Management confirmed that the benefits would be available regardless of whether the couple’s legal marriage is recognized by the state where they reside — meaning federal employees in Georgia will get full spousal benefits.

Military service members

The military bases its definition of who is married on the state where the celebration was performed, so spouses of military service members who marry where it is legal, but live in Georgia or other states where it is not, will still be eligible for benefits.

What you definitely don’t get

The right to marry in Georgia

Georgia has banned same-sex marriage not once, but twice: In 1996 via a state law and in 2004 through a constitutional amendment.

Neither of the Supreme Court’s June 26 rulings created a federal right to same-sex marriage, so they did not strike down Georgia’s ban. Georgia Attorney General Sam Olens stated after the ruling that Georgia will continue to enforce its definition of marriage.

The right to divorce in Georgia

It’s not as happy as the right to marry, but the right to divorce is just as important. If your relationship ends, you can’t access Georgia’s courts for a divorce.

This is particularly important if you choose to marry in another state that recognizes same-sex marriage: If that state will not allow non-resident couples to divorce there, and most don’t, you may find yourself in a marriage you can’t get out of without moving to that state and living there long enough to qualify as a resident.

State marriage benefits

Georgia’s steadfast refusal to recognize same-sex marriages from other states means that even if you travel to get married, you will still be considered single for state tax purposes. You also can’t access state benefits associated with marriage, such as the ability to cover your spouse on your insurance if you are a state employee.

What you probably don’t get

Social Security benefits

Federal Social Security benefits related to marriage include spousal retirement benefits, spousal disability benefits, survivor’s benefits and the lump-sum death benefit. While same-sex spouses who live in states that recognize their marriages will get these benefits, right now it seems unlikely for couples who live in states like Georgia that do not recognize same-sex marriage.

“Under existing law, the Social Security statute uses the wage earner’s ‘place of domicile’ as the relevant state law for assessing who is a spouse for benefits purposes,” notes a fact sheet prepared by Lambda Legal and other leading advocacy organizations.

“This will likely result in the agency denying crucial benefits to married same-sex couples and widows and widowers until the law is changed.”

Medicaid & Medicare

Medicaid is a health insurance program for people in poverty. States have their own Medicaid programs that also receive federal funding.
Same-sex couples living in states that recognize their marriages will now be eligible for Medicaid, but those who live in states like Georgia probably will not, according to the coalition of LGBT groups.

Medicare is the federal health insurance program for people over 65. The definition of spouse is similar to that for Social Security and is tied to your place of residence, meaning that Georgia same-sex couples who travel to other states to marry likely won’t be eligible for spousal benefits.

One possible exception is if you were married in a state that recognized your union, lived there and began receiving Medicare benefits there, and then moved to Georgia or another state that won’t recognize your marriage.

“If you applied for the benefit while living in a state that respected your marriage or allowed you to inherit without a will as a spouse and only moved after you started receiving benefits, you should continue receiving your Medicare benefits in your new home state, regardless of its own relationship recognition laws because benefits are determined by your marital status in the state where you applied for benefits,” the fact sheet states.

Family Medical Leave Act coverage if you don’t work for the federal government

Under the Family Medical Leave Act, public employees (those who work for federal, state, or local governments or public schools) and private employees of companies with 50+ employees can take up to 12 weeks of unpaid leave per year to care for a spouse.

While federal employees, and other employees in states that recognize their marriages, will get these benefits now, same-sex married couples in states like Georgia probably won’t — at least now without further legal or legislative action.

That’s because FMLA law, like Social Security, is currently based on whether your marriage is legal in your “place of domicile.”

“However, the federal government may take steps to use a ‘place of celebration’ rule so that a spousal status is assessed according to the law of the state where you married or secured a spousal status,” notes the Lambda Legal fact sheet. “This process may take some time.”

Veterans spousal benefits

Unfortunately, at this point it seems unlikely that veterans will enjoy the same benefits as active military service members.

Lambda Legal and other advocacy groups think more legislative or legal action will be necessary since the law governing veteran spouse benefits is based on if the marriage was “valid. . . according to the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued.”

This means that if you live in a non-equality state like Georgia, travel to get married, and then still reside in a non-equality state, you will likely not be considered married.

If you moved to Georgia or another non-recognition state after you got married in a state where it was legal, or you moved to Georgia after living in state that recognized your marriage when your benefits took effect, you are likely to be considered married for veteran benefits.

What remains uncertain

IRS ‘married’ federal tax status

Will the Supreme Court ruling on DOMA mean that you can change your federal tax status to “married,” even though you will still have to file as “single” for your Georgia state return?

The short answer is that we don’t know. A spokesperson for the IRS told GA Voice on July 2 that the agency is still studying the ruling and how it will impact states that don’t recognize same-sex marriage.

For more guidance on these issues and more, visit www.lambdalegal.org/publications/after-doma