Two months on, a hodgepodge of policies have emerged reflecting the limited scope of the Supreme Court’s decision regarding the Defense of Marriage Act. Homeland Security and the Social Security Administration policies diverge. The Internal Revenue Service has yet to decide which same-sex couples may file as married.
The Supreme Court ruling left intact a paragraph in the Defense of Marriage Act (DOMA) that is likely unconstitutional. That is the one that blows by the concept of full faith and credit being extended between states. This situation is not without historical and case law precedent; many states once refused to recognize interracial marriages performed in other states. This issue was not within the scope of the case as New York recognizes same-sex marriage. That paragraph of DOMA is an obstacle to clear and consistent federal policy. Same-sex couples may find that in order to benefit from the limited protection afforded by the decision, they will be forced to move to a state that recognizes same-sex marriage. It is almost certain that couples in unions that are not legal marriages, civil unions and registered domestic partnerships, do not benefit from the decision.
The practical effect on same-sex married couples begins to become evident in policy that has been promulgated by the Social Security Administration. The bottom line thus far is that for same-sex married couples to be considered married for social security purposes and enjoy the benefits afforded married couples, they must be married in a state that recognizes same-sex marriage and live in a state that recognizes a same-sex marriage of the state where married. For Homeland Security’s purposes, however, this same standard does not apply to couples who were married outside the United States and are immigrating, though the Social Security Administration literally ignores them.
The Internal Revenue Service (IRS) has yet to define marriage for tax purposes. Its website still contains the guidance predating the ruling. There are a variety of combinations that could be reflected in policy, but for practical purposes, it may be simplest for the IRS to follow the lead of the Social Security Administration, determining marital status based upon the laws in the state of residence. So, a couple married in Washington D.C. and living there would file federal and district returns as married while that same couple living across the river in Virginia would file using an unmarried federal and state status.
So, for now, same-sex marriage is not fully portable. And as for the Commonwealth of Virginia, it disintegrates at the state line.