Implementing Federal Protections for Same-Sex Couples
Following the U.S. Supreme Court’s June 2013 decision in Windsor v. United States striking down Section 3 of the so-called Defense of Marriage Act, Freedom to Marry pursued a multi-prong strategy alongside national partners and the movement’s legal organizations to secure swift and full implementation of the ruling. The goal was to work with (and, as needed, on) the Administration to ensure that legally married same-sex couples were treated as married by the federal government for all federal programs and purposes no matter where they lived – including in states that continued to discriminate.
Partnering with Legal Organizations
Over the course of many years, Freedom to Marry counted on its long-standing, trusting relationships with the movement’s “pillar” legal organizations, including the American Civil Liberties Union, Gay & Lesbian Advocates & Defenders, Lambda Legal, and the National Center for Lesbian Rights. (Freedom to Marry founder and president Evan Wolfson had served at Lambda Legal for many years, and had worked closely with all four groups). Drawing on a cumulative decades-long track record of leadership on marriage, clarity of mission, culture of sharing credit, and focus on tangible results, our organizations were able to work closely with the federal government to ensure implementation of the decision.
Freedom to Marry pursued a multi-prong strategy alongside national partners and the movement’s legal organizations to secure swift and full implementation of the 2013 Supreme Court Windsor ruling.
Even before the Supreme Court ruled in Windsor, these organizations had come together with other movement groups to discuss the various imaginable scenarios and develop advice for the administration on how to implement an end to federal marriage discrimination (i.e., to have the federal government treat same-sex married couples as it did other married couples, once freed of the discriminatory regime mandated by DOMA). Normally in the United States, the federal government defers to states in determining whether a couple's marriage is valid (which is part of why DOMA’s gay exception was so radical and aberrant). However, across all federal programs, there is not one single rule as to whether the validity of a marriage is determined by the couple's "place of celebration" (where the couple got married) or the couple's "place of domicile" (where the couple was living). For most couples, the outcome was the same, but for same-sex couples, still enduring the patchwork of discrimination in the states, the determination as to which rule to follow made all the difference.
Freedom to Marry and the movement’s legal organizations understood that for same-sex couples, the "choice of law" standard could make the difference between respect for their marriage - and all of the federal protections and responsibilities that stem from their marriage - and no protection at all. The goal, then, was to assist the Obama Administration in enforcing a “place of celebration” rule (what we called in our Respect for Marriage Act, the “certainty provision”). Beyond a limited number of programs that arguably required Congressional action - such as spousal and survivor benefits for Social Security and certain veterans benefits - the Administration was unquestionably able to provide fair treatment for married same-sex couples, and that was the message this coalition delivered to the President and his administration.
Guiding the Administration to Fully Implement Windsor
Before and after the Windsor decision, Freedom to Marry and its movement partners met with the administration to work with federal agencies on implementing the Windsor decision. Meetings were held with key staff from the Social Security Administration, the Department of Justice (including a meeting with Attorney General Eric Holder), and others. Fortunately, the Administration from the top down was committed to doing the right thing, and immediately after the decision, the Department of Justice began overseeing the work with other federal agencies to identify every applicable federal program, policy, and practice and ensure that all married same sex couples in the country would receive equal treatment by the federal government.
The federal government, following determinations by the President and Attorney General, moved quickly to ensure that agencies respected marriages between same-sex couples based on the place of celebration. In commendable response to our advocacy and the Constitution’s command, the Administration took strong and immediate steps in crucial areas such as immigration, taxation, pension and personnel policies for federal employees and service members. Throughout the fall, Freedom to Marry continued working hard with movement partners, particularly the four legal groups, to ensure that other federal programs, including Social Security and Veterans Affairs, followed.
In 2014, the Department of Justice declared that the federal government would respect the marriages of 1,300+ same-sex couples who married in Utah while a pro-marriage ruling was in effect for two weeks in late December 2013. This demonstrated a real commitment to implementing the Windsor decision and underlined the extent to which LGBT organizations and the marriage movement as a whole had established a reliable partnership with the administration.
Celebrating Steps Forward – and the Broader Impact of This Work
On June 20, 2014, one year after the Windsor ruling, the Department of Justice announced that it had fully implemented the Supreme Court’s decision to the greatest extent possible under the law. DOJ reported that agencies overwhelmingly determined to respect marriages as valid based on the “place of celebration.” However, because federal statutes for the Social Security Administration and Department of Veterans Affairs conferred certain benefits on the law of the state (“place of domicile”), DOJ concluded that it could not extend certain Social Security and veterans benefits to couples who lived in one of the 31 states where couples could not legally marry. DOJ and the White House urged Congress to pass legislation to extend these benefits to married same-sex couples living in non-marriage states.
Other legal cases were filed and bills were proposed in the U.S. Congress, but by the time any were resolved, the U.S. Supreme Court had granted review in the next round of marriage cases, and the victory on June 26, 2015 settled most matters of the federal government respecting the marriages of same-sex couples, no matter where they lived.
The impact of this fierce, committed advocacy and attention to the implementation of this order was broad: By ensuring that married couples were respected by the federal government, even in discriminating states, the marriage movement was able to make a real and immediate difference in people’s lives, but it was also able to shine a spotlight on the discrimination that continued to exist in many states while underscoring that this “House Divided” could not stand. Such an irrational and unfair legal patchwork further strengthened the case for upholding the Constitution’s guarantees of equal protection and the freedom to marry itself. Freedom to Marry’s 3-track Roadmap to Victory national strategy -- with one track being ending federal marriage discrimination -- succeeded, and the freedom to marry became the law of the land.