Last Thursday the Internal Revenue Service announced that all legally married same-sex couples would be treated as married for federal tax purposes, even if they live in one of the 37 states that ban or do not recognize same-sex marriage. This comes on the heels of the U.S. military's announcement that it will offer the full range of spousal benefits to same-sex spouses of service members, and the State Department's debut of a similar policy for immigration and visa rights.
However, same-sex couples who travel out of state to marry (and thus access these federal rights) may learn later that the benefits come with hidden costs, including an inability to divorce if they discover -- as couples of all kinds sometimes do -- that the marriage does not unfold as they hope. The reason? Many states refuse to recognize same-sex marriages even to dissolve them. This price is too high to justify. Accordingly, while I applaud the recognition that same-sex couples should have access to federal "marital" rights, the federal government should develop an alternative mechanism to recognize committed same-sex couples wherever they live.
The new tax policy is a small slice of a much bigger issue. There are more than 1,000 different provisions of federal law that reference "marriage." Under the federal Defense of Marriage Act, same-sex couples were simply categorically denied these rights. Now that this provision has been held unconstitutional, there are new questions regarding whether same-sex marriages "count" for various purposes. Some federal policies (including, we now know, immigration rights, civilian and military employee benefits, and tax) look to whether a marriage was valid in the state where it was celebrated. But other laws (including most prominently Social Security) look at whether the couple's home state recognizes the marriage as valid. And for many laws, it is simply unclear which approach will apply. The upshot is that more than 60 percent of same-sex couples remain ineligible for full federal marriage rights because they live in states that do not recognize same-sex marriage.
Leading advocacy organizations, major newspapers, and even President Obama have responded to this problem by suggesting that Congress should adopt a uniform place-of-celebration rule applicable to all federal laws. This would end the current confusion and mitigate the unfairness of existing policy. But this approach has some real weaknesses that have not been adequately considered.
First, for some couples, federal rights would remain out of reach. A same-sex couple living in southern Texas and hoping to marry would currently need to travel about 1,000 miles to reach Iowa, or 1,500 miles to reach California or Maryland. Although the military recognizes this problem and offers service members extra time off, most private employers will not do so. Nor will they pay the costs of such a trip. Marriage rates are already highly skewed by educational achievement, class, and race. This rule would exacerbate such disparities, and it all but guarantees that many same-sex couples would be unable to celebrate their marriage in the company of their friends and family.
The less obvious, but potentially far more troubling, problems will come later. States generally permit non-resident couples to marry, but they usually will not permit non-resident couples to divorce. Already, many same-sex married couples living in non-recognition states have discovered to their shock -- and horror -- that their home state will not grant them a divorce, and, in many instances, neither will the state that married them. At a minimum this imposes additional legal costs and complexity. In the worst cases couples are actually trapped in a marriage that one or both would like to end but are unable to obtain a divorce at all.
It would be far better for the federal government to develop its own mechanism for identifying committed couples who should be entitled to what are now considered federal marital benefits. Obviously there would be some logistical details that would need to be worked out, but state and local domestic partnership registries could serve as a template. Although some might worry that creating such a status would go beyond Congress' authority, it is well-established that federal government has power to define familial relationships for the purposes of developing and administering federal law. In fact, the military had been working to create just such a "domestic partner" registry, scheduled to be operational this fall. Unfortunately, it abandoned these plans when it announced that it would recognize all marriages.
The new tax policy is a welcome recognition that same-sex couples should not be denied federal rights on the basis of discriminatory policies in their home state. But as long as state marriage bans remain in place, federal policy should not require same-sex couples to run the risk of being literally "wedlocked" simply because they seek to access federal benefits.