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Kates Nussman Rapone Ellis & Farhi, LLP

The Supreme Court's Decisions on Gay Marriage and Their Effects

The Supreme Court's recent decision to strike down the Defense of Marriage Act (DOMA) sent shockwaves through the country. The decision makes it official that the federal government must recognize same-sex marriages. But in a country where the law on same-sex marriage differs from state to state, what does the ruling reallymean for gay couples and their rights?

First, the recognition of same-sex marriage entitles same-sex couples to the very same federal benefits that were previously afforded only to heterosexual married couples. Of the 1,000 benefits now available to these same-sex couples, social security benefits are among the most important.

The same qualifications apply for same-sex couples as for "straight" couples to receive benefits. They must be married for 1 year to get spousal benefits, 9 months to get survivor benefits, and for a child under sixteen, they can collect spousal benefits regardless of age. These social security benefits clearly extend to couples who live in jurisdictions where same-sex marriages are legal: California, Connecticut, Delaware, Washington D.C., Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington. In Washington D.C., even same-sex couples living outside the country will enjoy their benefits because D.C. laws apply overseas.

In the four states that allow same-sex civil unions but not same-sex marriage (Hawaii, Illinois, New Jersey, and Colorado), receipt of these federal benefits is not as clear. It is likely that federal benefits will extend to same-sex civil partners, but not guaranteed at the present time.

So what happens to federal benefits if a couple who was married in a state where same-sex marriages are legal, for example Delaware and move to a state where it is not. Unfortunately, the law is currently unclear because the Supreme Court did not provide any guidance. Some of us believe that the issue is black and white: if a couple is legally married in one state and then moves to another state, they remain married. But others believe the situation is more tenuous.

With 29 states having bans on same-sex marriages and the Supreme Court's ruling on California's Proposition 8 that each state has the right to decide the legality of same-sex marriage, the scope of gay marriage rights remains unclear. What we do know is that more litigation must and will be brought on behalf of same-sex couples to turn legal disputes into settled law.

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