Wednesday, April 25, 2018
Politics

Mixed benefits of DOMA decision for gay couples in Florida

As the chants and flag-waving subsided, people across the country began to ask the same, inevitable question about the U.S. Supreme Court's decision last week to strike down the federal Defense of Marriage Act:

What does this mean for legally married gay couples?

Where gay marriage is recognized — now 13 states plus the District of Columbia — the answer seems clear.

In Florida, which has banned such unions, the answer lies somewhere between "it depends" and "check back later.''

Even experts don't know entirely what the ruling means for gays who legally married elsewhere but now live in Florida.

"I think (the ruling) gives a false confidence that everything is taken care of and it's not," said University of Florida law professor Lee-Ford Tritt. "It's going to be very confusing for people."

The Tampa Bay Times spoke to four legal experts and reviewed pertinent literature to identify and explore some of the biggest issues in question:

Income tax

Most experts agree that, for the moment, legally married gay couples living in Florida cannot file their income taxes jointly.

The IRS considers a couple's state of residence at the time of filing, but that may soon change.

"This is something that we think can be fixed administratively," said Susan Sommer, director of constitutional litigation for Lambda Legal, a national nonprofit that has been fighting for gay rights since 1973.

President Barack Obama has made clear that his administration will make as many benefits available to gay couples as it can. A change in IRS policy, Sommer said, would not take an act of Congress — it may simply require a push from the president.

Social Security

Like the IRS, the Social Security Administration typically looks to the "place of domicile" to determine spousal benefits, which again would leave out married gay couples in Florida.

Changing that may require more than a directive from Obama.

"Unfortunately," Sommer said, "there's going to need to be more work beyond DOMA's demise."

Experts are unsure whether court or congressional action would be necessary, but some predict Floridians won't wait.

"I think there's going to be gay flight," said Miami-based lawyer Elizabeth Schwartz, a nationally recognized advocate for gay and lesbian rights. "I think people are going to pick up and go."

Still, couples who began receiving Social Security benefits before moving to Florida shouldn't have a problem.

Immigration

There is little doubt on this one. Gay or straight Americans who legally marry citizens of other countries may pursue a green card and permanent benefits for their spouses.

The federal government now views residents of all states the same on this issue.

What remains unclear is how people in civil unions might be affected. Experts have recommended such couples get married before filing.

Federal workers and active duty military

Perhaps no Floridians benefited more from Wednesday's decision than gay and lesbian members of the military and other federal employees.

"Once your spouse is recognized by the military as your spouse, the laws of the state in which you live no longer play a role in whether you remain eligible for spousal benefits from the military," according to a fact sheet produced this week by 11 national advocacy groups.

Experts say the same is true for all legally married federal employees.

Military veterans

It might stand to reason that the rules for veteran benefits would be consistent with those for active duty service members. They aren't.

"When it comes to veterans, unfortunately, that's another area similar to Social Security," Sommer said. She believes only action by the courts or Congress will change that.

Legal experts have considered two scenarios that would apply to Floridians:

If a gay couple got married in, say, Massachusetts and lived there when the benefits took effect, and later moved to Florida, the Department of Veterans Affairs would still recognize the couple as married and continue dispensing the benefits.

If, however, a gay couple married in Massachusetts, then applied for benefits in Florida, it's unlikely the VA would honor the marriage, experts think.

Medicare/Medicaid

Medicare, the federal health insurance program for seniors and the disabled, will function in Florida just like Social Security, experts say.

That means people who are gay, 65 or older and have legally married in another state cannot get benefits for their spouses here. But couples who began receiving the benefits before moving to Florida should be fine.

Also, just like Social Security, it's unclear what it would take for the regulations to change.

Medicaid — which covers long-term care — is a joint state-federal program, with eligibility usually determined by the states. Lambda Legal advised that same-sex couples living in Florida probably will be treated as single for Medicaid purposes, but advised consulting a lawyer.

Times researcher Natalie A. Watson contributed to this report.

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