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What 'Equality' Really Means After <i>Windsor</i>

In some wayssimply reversed the problem, trading in skim milk for half and half. No longer are state-sanctioned same-sex marriages invalid under federal law. Now, federally sanctioned same-sex marriages are invalid under some state laws!
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It has been roughly six weeks since the U.S. Supreme Court, in United States v. Windsor, struck down a pivotal piece of the Defense of Marriage Act (DOMA) that had defined marriage exclusively as a union between one man and one woman for all federal law. In my last blog post on The Huffington Post, I discussed how Windsor changed my life and the lives of hundreds of thousands of others living in same-sex marriages. The Supreme Court rejected DOMA's creation of "second-tier marriages" and held that the equal protection clause of the U.S. Constitution compels the federal government to recognize those same-sex marriages already sanctioned by state law. (Same-sex marriage is recognized in 13 states and D.C.)

While Windsor created a sea change in terms of federal recognition of same-sex marriages, it did not compel states to recognize those same-sex marriages performed elsewhere. (That part of DOMA was not directly at issue.) Also, the court did not require states themselves to sanction same-sex marriages. (It punted on that issue in Hollingsworth v. Perry.) By leaving state-sponsored discrimination intact throughout the majority of the U.S. (36 states currently refuse to recognize same-sex marriages), the Windsor opinion left a gaping hole in the heart of marriage equality.

In the past few weeks the initial euphoria I felt in reading the court's affirmation of my family, and the buoyancy that accompanied my newfound "equality," have been slowly eclipsed by more complicated feelings. As Windsor's implications have slowly unfolded in my life and others, I have been preoccupied with this question: What does marriage equality really mean now?

Before Windsor there were two classes of marriages: 1) heterosexual marriages, which enjoyed full state and federal recognition throughout the U.S., and 2) same-sex marriages, which enjoyed full state recognition (in the dozen states that recognized same-sex marriages at the time) but no federal recognition. During oral arguments in the case, Supreme Court Justice Ruth Bader Ginsburg disparaged the second-class status of same-sex marriages as a "skim-milk marriage" situation, suggesting that equality compelled the federal government to offer same-sex marriages the "whole-milk" treatment that it offered heterosexual marriages. Yet after Windsor, there are no fewer than three classes of marriages: 1) heterosexual marriages, which enjoy full state and federal recognition; 2) same-sex marriages with "full" state and federal recognition, like the marriages of same-sex couples living in marriage-equality states; and 3) same-sex marriages with no state recognition but some federal recognition, like the marriages of same-sex couples who marry in marriage-equality states but live in marriage-discrimination states. If you include domestic partnerships and civil unions (like those in New Jersey), then you have a fourth class of same-sex "marriages" that enjoy some (but not always all) state recognition and some (but not all) federal recognition.

So the meaning of "marriage equality" differs now (as much as ever) based on where a same-sex couple lives. Without question, virtually all same-sex marriages enjoy greater federal recognition today than before Windsor, but the "skim-milk marriage" problem that so offended Justice Ginsberg is unresolved. In some ways Windsor simply reversed the problem, trading in skim milk for half and half. No longer are state-sanctioned same-sex marriages invalid under federal law. Now, federally sanctioned same-sex marriages are invalid under some state laws!

Under this same-sex marriage caste system, state discrimination (which always existed) now coexists uncomfortably alongside federal recognition. If I were to drive cross-country with my family, the state-law status of my Massachusetts marriage would change nearly as often as the gas in my tank. While the majority of states I crossed would snub my marriage, the federal government would continue to recognize it. If I got ill during the trip, I could use my wife's federal employee health insurance (a benefit to which I am newly entitled under Windsor), while a local hospital could refuse to let my wife into my hospital room. And think of the same-sex military couple, married under state law, who must move from base to base. Will they gain and lose state marriage recognition with each relocation while the military confers marriage benefits? Will they be treated as married on base but considered unmarried when they step off base?

Then there are the challenges of implementing the federal-only marriage equality that Windsor created. The state law patchwork left intact under Windsor has created an administrative quagmire as federal agencies and programs adopt different policies in an attempt to implement the ruling. While some federal agencies and programs will look to the state of the marriage celebration to determine marital status for the purpose of conferring benefits (recognizing all valid marriages regardless of where couples live), others will look to the state of a couple's residency (giving benefits only to those couples living in marriage-equality states). Still others will look to the law of the state with the most "significant interest" in the marriage. (It's not entirely clear what this will mean.) Some will recognize domestic partnerships and civil unions, while others won't.

Unsurprisingly, many federal agencies are still figuring out the implications of Windsor. For example, same-sex couples are awaiting clarity from the Social Security Administration, the Department of Veterans Affairs and the Internal Revenue Service. Then there are questions of retroactivity. From what point in time will various federal agencies recognize the different classes of same-sex marriages? From some point in the past? If so, for what purposes?

In this light, the bundle of federal rights that many couples expected to neatly unwrap like an early Christmas present looks more like a Halloween corn maze. I recently attended a panel discussion about Windsor's implications comprising national experts on the opinion. They handed out a series of fact sheets compiled by GLAD and other advocacy organizations summarizing some of the ruling's implications. Those summary materials were 30 double-sided pages in length! And the font was small enough that I began to wonder whether I needed reading glasses. In the course of nearly two hours, the panelists raised dozens of unanswered questions on topics as varied as student financial aid, estate planning, FMLA leave, Medicaid, and bankruptcy, to name just a few.

I spoke afterwards with one of the panelists about some of the unanswered questions she's been encountering post-Windsor. She told me the story of a woman who lived for years in a heterosexual marriage. Years after her husband died, she fell in love with a woman. Knowing that under DOMA, the Social Security Administration wouldn't recognize her same-sex marriage, she married that woman in Massachusetts before turning 60. (Heterosexual remarriage before 60 would have disqualified her from widow's benefits.) Because DOMA erased her marriage, she started collecting widow's benefits based on her former husband's earnings. Will Social Security now stop her benefits? Will they make her return benefits already paid?

Then there was a call from the same-sex widow of a federal employee who died two years ago. Because of DOMA, the federal employee never made a spousal pension election. After Windsor, all federal employees in same-sex marriages, no matter where they live, can now make spousal pension elections. My wife (a federal employee) is doing this now. But what about this widow, whose wife died before Windsor? Can she collect a pension? If so, from the date of death or going forward?

Finally, there are some unintended consequences of Windsor's equality that many didn't expect. For example, Windsor has spurred some employers in marriage-equality states to abandon recognition of civil unions, domestic partnerships, and other non-marital relationships under the belief that same-sex couples in these states no longer need "special treatment." These partner benefits matter a great deal to the many same-sex couples who, for good reason, don't marry. For example, I have gay and lesbian friends who have forgone marriage -- even in states that would allow it -- so that they can adopt internationally. (Virtually no foreign country from which U.S. families currently adopt children will allow married same-sex couples to adopt.) Others fear family alienation, religious condemnation, or community rejection.

Many predicted that the Supreme Court's decision would lead to a flood of lawsuits, and these past few weeks have not disappointed. Recently, a federal judge in Ohio ordered state officials there to recognize, at least temporarily, the valid Maryland same-sex marriage of a couple living in Ohio (a state that forbids same-sex marriages). The decision will ensure that a dying man's death certificate will reflect his marriage and allow him to be buried in his husband's family burial plot. Likewise, a federal court in Pennsylvania ruled that a private company was required to recognize the Canadian marriage of a same-sex couple living in Ohio, mandating the award of death benefits to a surviving same-sex widow.

While these stories are extraordinarily compelling, they do not and will not stand alone. Cases testing the bounds of marriage equality will continue to percolate as same-sex couples navigate the uncertain waters between federal recognition and state-sponsored discrimination. This is because gay and lesbian couples are truly equal to all other couples in this sense: They get sick, die, divorce, move, have children, travel, and do all the other things that implicate state and federal law. In these moments anything less than absolute equality will feel -- indeed will be -- inadequate.

Don't get me wrong: The world of same-sex marriage is a lot better today than it was before Windsor. And the state of marriage equality need not be so complicated or incomplete in Windsor's aftermath. Federal agencies, where possible, should follow in the footsteps of the Office of Personnel Management and immediately recognize all same-sex marriages, regardless of where couples now reside. Congress should pass the Respect for Marriage Act and repeal the rest of DOMA so that same-sex marriages enjoy full federal recognition throughout the U.S. State legislators and voters should rid their statutes and constitutions of discriminatory marriage laws. Finally, federal courts, facing these unanswered marriage equality questions, should adhere to the principles of equality articulated in Windsor.

In trading "skim-milk marriages" for half and half, the Supreme Court raised as many questions as it answered. Chief among them: How much marriage equality is enough? The problem with the status quo is that principles of equality don't lend themselves well to "tiered" solutions, which are by their very nature unequal.

My wife and I recently read The Velveteen Rabbit to our 2-year old daughter. For those who aren't familiar with it, it is the story of a stuffed animal rabbit who becomes "real" through a little boy's love. We got to the part where the rabbit asks the skin horse (an older stuffed animal who is already "real"), "What is Real? ... Does it happen all at once, like being wound up ... or bit by bit?" The skin horse replies, "It doesn't happen all at once. You become. It takes a long time."

The Windsor opinion has given same-sex couples equality "bit by bit." The skin horse describes the timeline this way: "Generally, by the time you are Real, most of your hair has been loved off, and your eyes drop out and you get loose in the joints and very shabby." For those of us living through it, we haven't got that long.

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