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What the repeal of DOMA could mean

If the Defense of Marriage Act (DOMA) is struck down, more than likely it still won’t make marriage equality the law of the land—so what will it mean?

As of now, federal law forbids the legal recognition of same-sex couples, denying them the 1,138 benefits, rights and protections that marriage brings. While couples in states with marriage equality do enjoy most of the benefits, it’s still not completely equal; no matter what their own individual state says, DOMA disallows them to reap any of the federal benefits that is the right of heterosexual couples in all 50 states. Its elimination could change some or all of that.

Perhaps the most obvious federal benefit of marriage is taxes; even legally married gay couples can’t file jointly due to DOMA, and that means fewer tax breaks. This is a burden not only on couples, but on the companies that employ them.

With DOMA gone, those that offer benefits to domestic partners might no longer have to pay higher taxes on their contribution to the partner, or essentially put them on a separate payroll to grant those benefits—which is an additional hassle for the company, thus discouraging some from offering benefits to unmarried partners. Without that obstacle, considerably more households would be fully insured, making for healthier and less stressed workers, which means a more stable workplace for everyone.

For couples with children, their situations would be considerably brighter with marriage benefits. Second-parent adoption of a stepchild is currently harder or even impossible for some same-sex couples, leaving some real families with children who have a parent they love dearly but with no legal claim to them, something the availability of marriage could fix.

A post-DOMA legal change could also allow the parent of a child who is theirs de facto but not de jure to qualify for the earned income tax credit, thus leaving them with more money for the child they’re helping to support.

With true universal healthcare still in the works, same-sex couples are currently at a distinct disadvantage when it comes to health insurance. Not every company offers insurance to their workers’ domestic partners, as it isn’t required by law—including the United States’ biggest employer, its own government. It isn’t a certainty that DOMA’s repeal would change that, but under President Obama it seems very likely.

Under current law, the Family and Medical Leave Act, which allows an employee to use sick or unpaid leave to care for an ill family member without fear of losing their job, a domestic partner and their relatives aren’t legally family; this can put an entire family’s livelihood at risk. Without DOMA in the picture, the legal definition of family would potentially be much easier to expand, allowing more of them the financial ability to remain self-sufficient in a crisis, rather than having to go on welfare due to lost employment.

One of the areas where DOMA does the most damage is retirement; every working American pays into Social Security throughout their career, and when they retire it is often their only means of support, especially for those without children.

A widowed spouse or a child can receive survivor’s benefits, but being granted by the federal government, a widowed domestic partner or a child who was never officially adopted isn’t eligible. This leaves out many modern families.

One of the currently denied rights doesn’t matter at all to many couples, but means more than anything to others: immigration. The federal government under DOMA cannot legally recognize a same-sex couple as family, disallowing a mixed-nationality couple the chance for one partner to sponsor another.

If the repeal of DOMA leads to federal recognition of same-sex marriages even just in those states that allow it, couples torn apart by lack of citizenship will suddenly have real hope of being reunited in a country they know.

Another issue is inheritance; in states without any kind of legal recognition for them, a domestic partner only gets what their late partner’s will grants them—which can mean nothing, if there is none. A change in federal law could result in inheritance equality, with or without marriage equality; a surviving partner could potentially inherit like any other spouse, automatically upon the death of the other and no taxes owed.

Another positive change could be in inheritance of retirement funds; currently only a legal spouse is entitled to roll an inherited 401k/IRA plan into their own, tax-free, and all it would take to expand that law is a ruling that broadens the definition of “spouse.”

As of this writing, it remains to be seen even if DOMA will be struck down—but if not now, then soon. More uncertain is the future of marriage equality; if it remains something for each state to decide, some Americans could be left waiting for a long time. Some states have compromised with civil unions or registered domestic partnerships, but historically, we have seen separate is not equal.

429Magazine

Written By:
Morgan Welch
Morgan Welch
Wed, Mar 27, 2013
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