The June 26, 2015 decision in Obergefell v. Hodges, in which the U.S. Supreme Court recognized the right of same sex couples to marry and to have their unions recognized by all states and the federal government, was part of a big week of decisions out of the court. In a single week we saw significant rulings on issues ranging from the death penalty to the EPA to President Obama's health care reform.
In the case of same sex marriage, the decision was actually the second important Supreme Court decision on the subject in exactly two years. Whether coincidence or not, June 26 is now the date of two decisions that have had a huge impact on the issue of same sex marriage, and, perhaps surprisingly, for the Social Security administration.
In June of 2013, the Supreme Court decided in United States v. Windsor (known as the Windsor case) that the federal government must recognize same sex unions recognized by the states, but did NOT require states to allow marriage, or even recognize those legally performed in other states. This meant that for the first time same sex couples could get many federal benefits, like resident status for non-citizen spouses or filing as married on tax day. Before the Windsor decision, many legally married same sex couples filed as married for state returns and single for federal returns, causing confusion and requiring them to spend more money on accountants than other married couples. Others saw their spouses face deportation.
There are hundreds, even thousands, of other ways that federal recognition of marriage impacted families, so the Department of Justice coordinated and vetted the implementation of federal recognition across all the government agencies. To the surprise of many, one of the most challenging areas for implementation of the ruling was Social Security. While the Windsor decision was often treated in the media like a one-fell-swoop sort of thing, at the Social Security Administration (SSA) it was actually the opening of a year-long deliberative process which resulted in a final rule that was confusing and burdensome for both SSA and potential Social Security beneficiaries.
Social Security’s statute requires SSA to recognize as marital relationships those legal relationships which are recognized by the state in which a person lives. Since Windsor continued to allow states to refuse recognition, some couples were getting recognition—and benefits—from SSA, while others living in “non-marriage states” were not. To make things more complicated, “recognition” can mean many things. If a state allows marriage license for same sex couples, well then it recognizes same sex marriages. But what if a court has ruled that same sex partners can inherit each other’s property like spouses? Does that count? What about domestic partnerships recognized by the states? The Windsor ruling, therefore, left Social Security treating people differently based on their state of residence AND constantly tracking what each state (and its courts) decided to make ongoing determinations about what constitutes recognition.
And this is a high stakes process. Couples in which one person earns less get to take advantage of their spouse’s earnings record, boosting their own social security payment for life (and upon the death of their spouse, their benefit amount goes up again). For people with little non-Social Security retirement income, these distinctions are critically important. Likewise, workers who die leaving spouses, children and step children have earned benefits on which their families can rely, but part of those benefits depend on the recognition of the legal relationship between the adults.
Now with the Obergefell decision, we have what sounds like one-fell-swoop again: presto, all same sex marriages are recognized by Social Security. But once again, the process will be shepherded by the Justice Department and the results will not be immediately apparent. We do expect that in relatively short order, SSA will be able to divest itself of the burden of determining who lives where to know who is married to whom. This will not only provide more low-income retirees with better access to benefits, but it will also remove a costly administrative burden from an agency that can ill afford to waste its time.
Over the past decade SSA has lost workers (to retirement) without being able to replace them, has had to close field offices due to budget constraints, and has reduced some of its direct communication with the public to save money. The Obergefell decision will have many impacts more noticeable and more celebrated, or more debated, than its impact on the Social Security Administration. But for those of us who recognize the importance of SSA’s mission, and the difficult environment in which the employees work, this is a big deal.
Rachel Goldberg, Ph.D has been the B’nai B’rith International director of health and aging policy since 2003 and the deputy director of the B’nai B’rith International Senior Services since 2007. Before joining B'nai B'rith International, she taught politics and government at the University of Puget Sound and Georgetown University. To view some of her additional content, Click Here.
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