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Married and Gay, but Not Eligible for Full Benefits

Court overturns same-sex marriage ban. Will all couples enjoy the same safety net?

Two women hold hands after getting married at city hall in San Francisco, California.

— Kimberly White/Corbis

When Herb Burtis, 80, lost his spouse to Parkinson’s disease in 2008 after 60 years together, he experienced the kind of wrenching grief that anyone in a long-term marriage would feel. “I was devastated,” he remembers.

Burtis soon discovered that he wouldn’t have the same safety net that other widowers have. He and his husband, John Ferris, first met in college in 1948. They married in 2004, when same-sex marriage became legal in Massachusetts. But while the state recognizes their marriage, the federal government does not.

Indeed, the Defense of Marriage Act (DOMA), passed by Congress in 1996, defines marriage exclusively as “the legal union of a man and a woman as husband and wife.” The result: Burtis and all other same-sex married people are barred from all the federal protections afforded to heterosexual couples — including Social Security survivor benefits, worth about $700 a month in Burtis’ case.

That may change soon. Last week, in a landmark case, U.S. District Court Judge Joseph L. Tauro ruled that DOMA is unconstitutional. According to the judge’s ruling, same-sex couples are entitled to the same federal spousal benefits and protections as every other married couple.

“It’s a matter of simple justice,” says Burtis, who was one of the plaintiffs in the case. “I paid into Social Security. So did John. We deserve to receive the same benefits as any other married couple.”

In the contentious debate over same-sex marriage across the country, fairness and equality have become the new rallying cry. “Federal laws relating to marriage touch on every conceivable area of life, from birth to death,” says Mary Bonauto, a lawyer with the organization Gay & Lesbian Advocates & Defenders, which filed the challenge to DOMA in Massachusetts. “DOMA makes those protections available only to heterosexual couples. It basically creates a system of first- and second-class marriages. Heterosexual marriages get all the federal protections. Same-sex marriages get none. That’s wrong.”

Left out in the cold
The issue has particular importance for older gay and lesbian couples. Many of the benefits denied by DOMA are in place to protect older people from economic insecurity in the face of serious illness or the death of a spouse.

After President Bill Clinton signed DOMA in 1996, the U.S. General Accounting Office identified a total of 1,049 statutes that relate to marriage. An updated survey in 2004 indentified 1,138.

Earlier this year, an organization called Services and Advocacy for Gay, Lesbian, Bisexual & Transgender Elders, or SAGE, published a report called “Improving the Lives of LGBT Older Adults,” which outlines protections afforded by some of these statues and denied gay couples by DOMA.

  • Social Security spousal benefits. If one spouse in a heterosexual marriage works and the other doesn’t, the nonworking spouse still receives Social Security benefits, calculated at 50 percent of what the working spouse receives. The policy, called a “spousal benefit,” was put in place to protect spouses who stay at home to raise families. Same-sex couples are denied those benefits — even though many raise children. If one same-sex spouse doesn’t work, he or she receives nothing.

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