The New Jersey Litigants Are Both Right

If a state is willing to provide marital benefits to a couple, shouldn't the federal government be prepared to do the same? It's not a bad question. And one that is being posed in Garden State Equality v. Dow. The plaintiffs there are claiming that the New Jersey civil union law is unconstitutional, relying in part on the fact that they are ineligible for federal benefits. New Jersey is countering that the plaintiffs fight is with the federal government, not New Jersey. They're both right in a sense. The state law should be declared unconstitutional but not because of the denial of federal benefits; and the federal government can and should provide federal benefits to same-sex couples in civil unions and domestic partnership.

Many in the country were thrilled when the Supreme Court, in United States v. Windsor, declared § 3 of the federal Defense of Marriage Act unconstitutional. But the celebration falls flat once you realize that the Obama administration isn't providing federal marital benefits to all couples, despite the authority, and arguably the obligation, to do so.

Just weeks following the Court's ruling, the Office of Personnel Management (OPM), the human resources agency for the federal government, decided that federal employees who are in civil unions or domestic partnerships "will remain ineligible for most Federal benefits programs."

According to the OPM, the Court's decision only addressed the status of legally married couples, leaving the nearly 110,000 same-sex couples in civil unions or domestic partnerships in the cold. But OPM is giving an unnecessarily narrow reading to the Supreme Court's opinion and in the process ignoring several states' decision to provide spousal equivalent benefits to same-sex couples.

The agency is letting the term "marriage" trump the term "spouse." The term marriage is simply the standard for a couple's or individual's eligibility for certain spousal benefits. Currently five states, Colorado, Hawaii, Illinois, Nevada, New Jersey and Oregon, have opted to use terms other than marriage. They have, however, provided all the parties to these unions with all the same rights, benefits and obligations as spouses to a marriage. Why isn't OPM doing the same?

In stark contrast to OPM's decision, at least one federal agency has recognized civil unions and domestic partnerships in the context of federal benefits. An opposite-sex couple in Illinois entered a civil union and asked the Internal Revenue Service if they could file a joint tax return. The IRS responded positively, citing Illinois law and stating "if Illinois treats the parties to an Illinois civil union who are of opposite sex as husband and wife, they are considered 'husband and wife'" under the tax code and can file jointly. Likewise, after California extended full community property treatment to same-sex domestic partners, the IRS recognized these same rights for federal tax purposes.

The "marriage is the only valid noun" argument adopted by OPM fails on a more fundamental level. The federal government's decision to ignore state recognition of a couple's union raises the same constitutional concerns as the discredited Defense of Marriage Act. Both DOMA and OPM's decision "demeans the couple, whose moral and sexual choices the Constitution protects and whose relationship the State has sought to dignify," albeit with a different label.

To be sure, the federal government's decision to deny benefits adds fuel to the argument that New Jersey's civil union law is unconstitutional. But it isn't necessary. The federal government's willingness to provide the legal benefits of marriage does not undermine the argument that New Jersey's decision to exclude gay and lesbian citizens from marriage is unconstitutional. As lawyers David Boies and Ted Olson ably argued in the Proposition 8 trial, California's decision to provide domestic partners with the same marital benefits as spouses did not correct the constitutional injury inherent in a separate relationship status. By creating a separate class of unions for gay and lesbian couples, a state deems these relationships as unworthy of the cultural and symbolic dignity associated with opposite-sex marriages. Under the Windsor reasoning, that's simply unconstitutional.

President Barack Obama applauded the Supreme Court's decision striking down DOMA. In his statement he described DOMA as "discrimination enshrined in law" because it "treated loving, committed gay and lesbian couples as a separate and lesser class of people." But OPM's recent decision to treat same-sex couples in civil unions and domestic partnerships as ineligible for federal marital benefits does the same.

It may be several years before national marriage equality is realized. In the interim, the federal government should provide federal marital benefits to all couples in legally recognized unions. Until it does, the federal government is imposing the same indignity and injury declared unconstitutional in Windsor and denounced by President Obama.