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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?

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.

  • Social Security survivor benefits. If a working spouse in a heterosexual marriage dies, the nonworking spouse receives the partner’s full Social Security benefits. A surviving spouse who earns less in Social Security automatically qualifies for the deceased spouse’s higher benefit. Even ex-spouses qualify — as long as they are man and woman. Not so the surviving spouse of a same-sex marriage, like Herb Burtis.

    According to the SAGE report, the lack of survivor benefits can be especially punitive, denying a surviving spouse in a same-sex marriage up to $28,152 a year. Overall, the report found, same-sex couples receive as much as 31.5 percent less in Social Security benefits than comparable heterosexual couples.

  • Medicaid long-term care benefits. When one married spouse becomes seriously ill or incapacited and requires long-term care, Medicaid policies are designed to prevent the healthy spouse from being impoverished by the high costs of such care. These protections do not exist for same-sex couples. In a heterosexual marriage, for example, if one spouse enters a nursing home, the other spouse can keep the couple’s home, household goods and one car. A same-sex spouse risks losing it all, depending on who officially owns the property.

  • Veterans benefits. Heterosexual spouses of veterans qualify for bereavement counseling, death pensions, home loan guarantees and even a burial flag. They can also be buried beside their husband or wife in a veterans’ cemetery. Not so same-sex spouses. Darrell Hopkins, 65, served in Vietnam, earning two Bronze Stars, the Vietnam Campaign Ribbon and the Vietnamese Cross of Gallantry with Gold Palm. In 2004, he married Tom Casey in Massachusetts. Hopkins can be interred in a national veterans’ cemetery; his husband is barred from being interred beside him.

  • Tax policy. Same-sex couples who are married typically have to create two sets of income tax forms: one for the state, which recognizes their marriage, and another for the federal government, which does not. They often have to pay more in taxes, as well. When an employer extends benefits such as health insurance to a heterosexual spouse, for example, the value of those benefits is not taxable. Same-sex partners must pay taxes.

  • Inheritance laws. Property passes automatically to a surviving spouse in a heterosexual marriage. Not so for same-sex couples. Many such couples must make complex and often expensive legal arrangements to ensure that decision-making and inheritance passes to a surviving spouse. “When I was married to a woman, we never had to think about any of this,” says Gordon Herzog, a financial manager in Annapolis, Md. After his marriage split up, he met and married Reed Erickson, an architectural designer. “Now we have to worry about everything from inheritance to medical decisions. We’ve had to pay a lot of money to draw up legal documents just to ensure that we’ll be able to visit each other if we’re ever hospitalized.”

An ongoing conversation
The issue of same-sex marriage is far from settled. The Massachusetts ruling applies only to the approximately 16,000 same-sex couples married in that state. Many experts say the ruling is likely to be appealed by the U.S. Justice Department. If the appeal finds its way to the Supreme Court and the ruling is upheld, same-sex marriages throughout the country would be protected under the Constitution, just as interracial marriages are now.

In all, five states — Massachusetts, Vermont, Connecticut, New Hampshire and Iowa — and the District of Columbia have legalized same-sex marriage. Three other states — Rhode Island, New York and Maryland — recognize same-sex marriages from other states even though they don’t offer them to residents.

Eight other states have civil unions or domestic partnerships that offer all or most of the rights and responsibilities of marriage. One of those is California, where the tug-of-war over same-sex marriage has been particularly fierce. In 2008, the California Supreme Court legalized gay marriage. Opponents quickly placed an initiative, called Proposition 8, on the ballot to bar same-sex marriages. When Prop 8 passed by a narrow margin, proponents of gay marriage swiftly challenged the initiative as unconstitutional.

A federal district judge is expected to rule soon on whether to uphold or strike down Proposition 8. If he finds that the ban on same-sex marriage violates the federal Constitution’s guarantee of equal protection, the decision would have nationwide implications, because a majority of states have statutes or amendments in place restricting marriage to heterosexuals. Such a ruling would almost certainly make its way to the U.S. Supreme Court.

Though the outcome of marriage equality is far from certain, its advocates remain confident that it will ultimately prevail. “Each of these rulings is part of a long conversation under way about marriage rights,” says Martha Ertman, a professor of law at the University of Maryland and herself part of a same-sex marriage. “It’s worth remembering that it wasn’t all that long ago when some states barred interracial marriages. We would never accept that now, legally, politically, culturally or socially. I think the same thing will happen with same-sex marriages.”

Holly Puterbaugh, 64, a professor emeritus at the University of Vermont, and her spouse, Lois Farnham, 65, a retired emergency room nurse, have learned to be patient. They became a couple in 1972. In 1997, they were one of three couples who filed suit in Vermont demanding their constitutional right to be married. The landmark case resulted in the first civil unions in the country. In 2009, Vermont scrapped civil unions and approved same-sex marriage. Puterbaugh and Farnham were married.

But because their marriage is not recognized by the federal government, they can’t file federal income taxes as a married couple. They have to pay taxes on spousal benefits that heterosexual couples receive tax-free. And when they go on Social Security, they will receive less than identical heterosexual couples. As Farnham says, “That’s just plain unfair.”