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DOMA Is Dead—Now What?

Attorneys weigh in on what Wednesday’s ruling means for gay and lesbian couples.

In a 5-4 decision, the US Supreme Court this morning threw out the Defense of Marriage Act. But what does that mean, practically speaking, for gay and lesbian couples? In what ways will today’s decision impact their daily lives?

For couples who got married in, and continue to reside in, states that recognize same-sex marriage, today’s decision puts them on equal footing with opposite-sex couples when it comes to rights such as social security death benefits, the ability to file joint income taxes, and pension benefits, says Todd Solomon, a partner at McDermott Will & Emery who specializes in employment law and domestic partnerships.

A spouse who married and resides in a state recognizing same-sex marriage is now entitled to pension payments after the death of his or her husband or wife. Similarly, same-sex spouses are now the automatic beneficiaries of their spouses’ 401(k) plans.

Solomon expects employers in states where same-sex marriage is legal to now be required to cover same-sex spouses if they offer health coverage for opposite-sex spouses. And previously, even if an employer offered health-care coverage for gay and lesbian spouses, employees who took those benefits for their husbands and wives had to pay hundreds or thousands of dollars in federal taxes on them. This is no longer the case.

But the DOMA ruling does not change the fact that it remains up to individual states to legalize same-sex marriage. And things get murkier when it comes to employee benefits for gay and lesbian couples living in states that don’t recognize their marriages.

“Which state’s law matters? The state where [a couple] married or the state where they live?” says Solomon. “That’s a huge open question for employers going forward.” Employers in Florida, for example, where same-sex marriages are not legal, could still argue that they are not required to offer spousal health benefits to gay and lesbian couples who got married in New York or DC. Solomon predicts a “wave of litigation” to come from these types of situations.

For gay and lesbian individuals with partners who are foreign nationals, however, there is no ambiguity surrounding the effect of today’s ruling, says Lavi Soloway, an attorney who helped launch The DOMA Project, a campaign focused on immigration equality for same-sex couples.

People in this scenario are now free to apply for fiancé visas to bring their partners to the US to get married. Americans already married to non-citizen same-sex spouses can now apply for green cards for their partners. Because immigration law is federal, it doesn’t matter whether the couple lives in a state that recognizes their marriage.

From the time the court handed down the ruling at 10 AM this morning, Soloway has received hundreds of e-mails from bi-national couples ready to move forward with the legal process to start their lives together. Says Soloway: “They can now be treated like all other citizens.”

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