Kentucky LGBT advocates forge ahead in the wake of the Supreme Court decision striking down DOMA
Last week’s landmark ruling by the Supreme Court struck down a key provision of the Defense of Marriage Act (DOMA), which had prevented married same-sex couples from receiving more than 1,000 federal spousal benefits.
The strongly worded majority opinion declared that the 1996 law “violates basic due process and equal protection,” “demeaned” and “humiliated” gay couples, and that “no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”
LGBT rights activists hailed the ruling as a historic milestone, noting that married same-sex couples residing in states where such a union is legally recognized will immediately gain these federal benefits, and the opinion’s language could provide the legal basis to expanding marriage equality to all 50 states.
But for same-sex couples living in Kentucky — married in another state where such a marriage is legally recognized, but residing in Kentucky, where it is not — many of these benefits will not immediately be granted, with uncertainty going forward.
LGBT rights advocates in Kentucky — where the state constitution was amended to ban same-sex marriage in 2004 — are optimistic that all federal benefits will expand here soon, while mapping out a strategy to expand equal rights further.
Like many same-sex couples in Kentucky in recent years, Beth and Michele Hager-Harrison-Prado of Louisville traveled to Washington, D.C., last June to get married, only to come back home where neither the state nor federal government recognized their union.
Beth, who came out as gay 40 years ago, never dreamt of a day like last Wednesday.
“There’s a part of me that’s still kind of stunned,” says Beth. “But I can’t even tell you how happy I was. I’m just amazed this happened in my lifetime.”
Beth and Michele — like other Kentucky couples married out of state, or planning to do so following the Supreme Court ruling — are now trying to determine exactly what federal marriage benefits will apply to them.
The current uncertainty for many right now stems from the fact that federal agencies administering marriage benefits have different approaches to determining if a marriage is valid.
Some agencies, like those overseeing immigration, look to the state where a couple was married — meaning that no matter where someone lives, a person can sponsor their spouse for U.S. citizenship.
But other agencies — such as the IRS and the Social Security Administration (SSA) — base marriage-benefit eligibility on the state where a couple lives. Until those rules change, this provides an obstacle to Kentucky spouses hoping to take advantage of Social Security survivor’s benefits and the ability to file taxes jointly, among many others.
In a fact sheet released after the ruling, the ACLU noted that the ban on same-sex marriage in states like Kentucky “will likely pose obstacles for legally married couples and surviving spouses in accessing federal protections and responsibilities” from such agencies. The ACLU added that those couples “should proceed with caution” and “seek out individual legal advice” before traveling to another state to marry, based on individual circumstances.
But these obstacles may not last for long. Many legal experts believe President Obama can and will proceed with an executive order to alter the guidelines for some federal agencies, such as the IRS, so they recognize marriages based on the state they were married in.
But Obama might have a harder time doing this on his own with the SSA, as their marriage rules are set in statute and will likely need to be changed by either Congress or another court ruling.
One legislative solution to this confusion among federal agencies is the Respect for Marriage Act, which would fully repeal DOMA and ensure that all federal agencies recognize same-sex marriages, regardless of residence. While the bill has the strong support of Democrats, it is highly unlikely to pass the Republican-controlled House.
Chris Hartman, director of the Fairness Campaign, says that the Supreme Court’s opinion in the DOMA case makes it clear that all federal benefits should now be available for spouses in Kentucky, and is optimistic that this will proceed rapidly.
“There’s going to be litigation surrounding this, but I think that just on the surface, all federal benefits for married couples should come through, even in a state like Kentucky,” he says.
Both Hartman and the ACLU of Kentucky stress that while the DOMA ruling was a landmark victory for LGBT rights, their main focus in the coming years remains passing a law through the state legislature that bans discrimination against LGBT people in housing, employment and public accommodations. Currently there is no legal protection against such discrimination in Kentucky outside of Louisville, Lexington, Covington and Vicco, where local Fairness Ordinances were passed.
There is also currently talk of legal challenges to Kentucky’s ban on same-sex marriage, with a Shelby County couple planning to file a federal lawsuit soon. Though the Supreme Court declined to rule on California’s Prop 8 case last week, many legal experts say that the wording of the DOMA opinion reveals that lawsuits against such state bans would be successful.
For Beth and Michele Hager-Harrison-Prado, their path to federal benefits will be easier than most in Kentucky. Michele is a veteran of the Navy, where spousal benefits are still up in the air at the Veteran’s Administration, but Beth is a federal employee, who, along with active-duty military, should be able to have their marriage fully recognized.
While Beth is ecstatic about last week’s ruling, she cautioned that those advocating for civil rights must remain vigilant.
“In 1965 when the Voting Rights Act was passed, we were optimistic as hell about that, too,” says Beth. “And then the day before the DOMA decision was reached, the Supreme Court gutted that. So I’m optimistic, but I also know you have to keep fighting the fight, because having a right is not the same as keeping a right.”