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How DOMA Hurts Americans

A Summary of the GAO Reports on Section 3 of the Federal Defense of Marriage Act1

Download this publication as a pdf

Executive Overview

The Defense of Marriage Act (DOMA) was enacted in 1996, before any state began issuing marriage licenses to same-sex couples. DOMA has two substantive parts:

  • Section 2 permits states to disregard the marriages of same-sex couples, even when the marriage is legally licensed and certified by another state.
  • Section 3 of DOMA provides a definition of “marriage” and “spouse” for purposes of all federal laws and programs. It states: “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only the legal union of a man and a woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” 1 U.S.C. § 7.

This Summary focuses on Section 3 of DOMA and how it harms married same-sex couples in any of the states where their marriages are licensed or recognized in whole or in part. The federal government does not license marriages; in the past it has always deferred to a state’s determination of a person’s marital status to determine eligibility for the protections and responsibilities in those federal laws and programs that affect married persons. But DOMA overrides a state’s determination that a person is married, thus rendering spouses in a same-sex couple “single” and disqualifying them from federal spousal protections and responsibilities in all federal programs.

The federal programs to which same-sex married couples are denied equal access represent some of the critical legal safety nets that couples count on when they marry as they plan their lives and futures together, as they raise children and deal with hard times, and for which they contribute their U.S. tax dollars. In particular, this document addresses how:

  • DOMA Threatens the Security of our Senior Citizens.
  • DOMA Adds Costs to Businesses, Employers and Employees.
  • DOMA Discriminates Against Taxpayers.
  • DOMA Hurts Military Families.
  • DOMA Tears Apart Families and Hurts Children.

Not surprisingly, some federal marital benefits are premised on the expectation that spouses will mutually support one another and thus impose financial responsibilities on spouses. Benefits like Supplemental Security Income, Medicaid and Medicare are “means tested” so that a spouse’s income is included as part of the recipient’s income in assessing financial eligibility for the program. Yet, due to DOMA, married same-sex couples do not face the same limitations as other married beneficiaries of these programs because the federal government ignores their marriages. Part of the reason why the Congressional Budget Office estimated that the federal government would save $1 billion each year through 2014 if the federal government recognized marriages of same-sex couples nationwide is because of projected savings in those very programs, even as the federal government might spend more in areas such as Social Security and Federal Employee Health Benefits.

Many marital protections are non-pecuniary, but are still critically important for those who need them. For instance, married persons enjoy the right under federal law to invoke the marital confidences and spousal privileges in federal court, see Fed. R. Evid. 501, the right to sponsor a non-citizen spouse for naturalization, see 8 U.S.C. § 1430, and to obtain conditional permanent residence for that spouse, id. § 1186b(2)(A). Military spouses are given priority notice and more detailed information when their loved ones are injured, killed, or lost in action.2

Finally, by excluding married same-sex couples from all federal statutes, DOMA undermines the purposes of these statutes. For example, DOMA undermines federal ethics laws and abuse reporting requirements in the military.3 DOMA also confuses anti-nepotism provisions4; judicial recusals5, restrictions on receipt of gifts and on travel reimbursement6, and the crimes of bribery of federal officials and threats to family members of federal officials.7

I. DOMA Threatens the Security of Our Senior Citizens.

DOMA exacts substantial costs on older Americans as they near and enter retirement by stripping away the federal safety net that our senior citizens have depended on for generations to grow old with dignity and security.

Social Security:

The Social Security program was created to provide for workers and retirees in their old age as well as to ensure that a worker’s family will have money to live on if the worker dies or becomes disabled before retirement. People are eligible for these crucial protections only if they have paid into the system for a sufficient amount of time. DOMA denies the following protections to gay and lesbian retirees and widows/widowers.

  • Social Security Disability Benefits: If a worker is eligible for disability benefits, a spouse and also a divorced spouse may qualify for up to 50% of the disabled worker’s benefit amount.8
  • Social Security Spousal Benefit: If a couple has been married at least 12 months, a retired lower-earning spouse —assuming that he or she meets age and other requirements—can receive his or her own Social Security benefit plus a “spousal benefit” to bring his or her social security benefit up to 50% of the higher wage earner’s benefit. (A non-earning spouse can receive a spousal benefit of 50% of the worker’s retirement benefit while both spouses are alive.)
    • In addition, a lower-earning spouse in a couple may be able receive benefits as a spouse described above while also delaying his or her own retirement to a later age. By delaying Social Security payments to a later age, the worker’s benefit increases.9
    • Even a divorced spouse (if married for at least ten years) can claim a spousal benefit.10

  • Social Security Benefit for Surviving Spouse: If a couple has been married at least 9 months, a surviving spouse—assuming that he or she meets age or other requirements—is entitled to receive the greater of either his or her own Social Security retirement benefit or the deceased worker’s Social Security benefit.11 A surviving spouse can also use the survivor’s benefit to delay retiring on his or her own record, thereby earning delayed retirement credits and increasing his or her own benefit.12 Even a divorced spouse benefits from this protection.13
  • Social Security One Time Death Benefit: This is a one-time lump sum payment made to the surviving spouse or, if no surviving spouse exists, to a minor child of the deceased insured worker.14

Medicare Part B

Medicare is our country’s health insurance program for people age 65 or older who have earned Social Security benefits and for people with disabilities. There are four parts to Medicare:

  • Medicare Part A, Hospital Insurance - inpatient hospital care, limited skilled nursing care, hospice care and other services;
  • Medicare Part B, Medical Insurance – doctors’ fees, outpatient hospital visits, and other medical services and supplies that are not covered by Part A;
  • Medicare Part C, Medicare Advantage – a plan available to those who have Medicare Parts A & B that allows a person to receive all of health care services through a provider organization; and
  • Medicare Part D, Prescription Drug Coverage.15

A U.S. citizen or permanent resident who does not enroll in Medicare Part B at age 65 and begin paying monthly premiums for coverage will, in most instances, face a 10% lifetime penalty for every year he or she has failed to enroll if he or she subsequently enrolls.16 The citizen or resident will not face these penalties if he or she has existing medical coverage through a spouse’s employer or union group health plan.17

DOMA prevents married couples of the same-sex from deferring their enrollment into Medicare even if they are covered by a spouse’s health plan.

  • Missed enrollment. Since many married couples are unaware of this DOMA trap and therefore one spouse misses the initial enrollment deadline (three months after age 65), there are two important consequences:
    • The spouse who missed the deadline cannot sign up for Medicare until the next open enrollment, which is January through March of the next year. That can mean a period of time with no medical insurance.
    • The spouse who misses the initial Medicare Part B enrollment window will face a lifetime penalty of increased premiums.

  • Extra premiums or a forced change in coverage. Couples aware of this DOMA trap face the dilemma of paying for private medical coverage and Medicare Part B premiums or the spouse is forced to give up (sometimes better) private employer-based insurance they might rather keep.


Medicaid is a partnership between States and the federal government that provides health coverage for people with lower incomes, older people, people with disabilities, and some families and children.18 For elders, Medicaid provides nursing home/long term care coverage for seniors who meet financial and non-financial eligibility criteria.19 Most people do not have the resources, insurance or long-term care services necessary to provide for their medical needs as they age and thus rely on Medicaid. In 1998, Congress extended “spousal impoverishment” protections to married heterosexual couples. Although federal law mandates a baseline of financial protections to prevent impoverishment of the “community spouse” in a couple where the other receives nursing home or long term care, DOMA interferes with those protections for married same-sex couples.

  • DOMA distorts who is eligible for Medicaid. Because of DOMA, an applicant with a spouse of the same sex will be treated as an individual while for other married couples, income and assets are pooled jointly to determine eligibility.20 As a result, only the applicant’s resources will be considered in determining Medicaid eligibility. This means that DOMA qualifies some married applicants with a spouse of the same sex for benefits who would otherwise be disqualified if DOMA did not exist, and at the same time disqualifies some married applicants with a spouse of the same sex who would be qualified if DOMA did not exist.
    • Increased costs to the states. Some states that permit same-sex couples to marry have begun to try to address this inequity by treating all married couples as married notwithstanding DOMA when determining Medicaid eligibility. At minimum, this means using only state funds to cover otherwise-eligible married same-sex couples. 21
    • Difficulty protecting resources for the community spouse. In general, the income and assets of married couples are pooled together to determine eligibility for long term care. If the pooled resources exceed a certain threshold, the spouse needing long term care must “spend down” the pooled resources to the threshold amount before Medicaid will cover the costs of long term care.

      To prevent a situation where resources are so depleted that the community spouse faces poverty, federal law allows that spouse to retain a share of the institutionalized spouse’s resources which would otherwise have to be spent before the institutionalized spouse would qualify for Medicaid. For example, the family home is not countable if the community spouse lives in it.22 A spouse can retain monies for a living allowance.23 In some instances, the community spouse can also keep income received by the institutionalized spouse.24

      DOMA disqualifies married same-sex couples from these protections. If a state chooses to treat all married couples alike regardless of DOMA, it must use only State funds (with no federal financial participation) to cover any additional expenses.

  • Transfers of Assets Between Spouses Are Limited by DOMA. As a general matter, federal law requires States to render an institutionalized individual ineligible for medical assistance for a period of time if that individual or his or her spouse has transferred or disposed of assets for less than their fair market value.25 However, to protect the community spouse, no period of ineligibility is imposed when other assets are transferred to or from the individuals’ spouse or to another “for the sole benefit of the individual’s spouse.”26 While this is an enormously important protection for spouses, Medicaid’s asset transfer protections for spouses do not apply to married same-sex couples due to DOMA.
    • States may act to provide some of Medicaid’s anti-poverty protections for spouses. In the summer of 2011, the Center for Medicare and Medicaid Services informed states that federal law allows same-sex partners of Medicaid recipients to obtain some of the anti-poverty protections in limited circumstances if States adopt affirmative policy measures to provide them (laws, regulations or guidance materials) and do so at their own expense.27

      For transfers of assets, the CMS Letter states that States may extend protection to same-sex couples (including married same-sex couples) under the “undue hardship” exception to transfer penalties.28 The family home and other assets can both be protected from transfer penalties if the State extends that protection at its sole expense.29

      Without the ordinary Medicaid protections and in the absence of a State stepping in, a recipient of long term care with a spouse of the same sex must maintain home ownership of the home where the other (“community”) spouse lives rather than transfer it. This subjects the home to a Medicaid pay-back lien (described below). When the lien is enforced, a community spouse married to someone of the same sex could be made homeless if he or she does not have the assets to pay off what can be a very significant lien. This important protection against homelessness of elderly spouses does not extend automatically to spouses of the same sex only because of DOMA.

  • Because of DOMA, the surviving spouse of a married same-sex couple is not protected automatically from Medicaid estate recovery efforts and liens.

    • Liens. States may impose liens on real property during the lifetime of a Medicaid enrollee who is permanently institutionalized, but may not do so when a spouse or certain children or siblings continue to reside in the home, or when it appears the care recipient may return home.30 This is significant protection for the community spouse but is not available to spouses of the same sex because of DOMA.

      The CMS Letter authorizes (but does not require) States to protect same-sex couples from the imposition of liens when one is permanently institutionalized. The letter clarifies that the imposition of liens is allowed, but not required, under federal law, so that States may not impose liens when others – such as a same-sex partner – occupy the home.

    • Estate Recovery. For Medicaid enrollees age 55 or older, States are required to seek recovery of payments from the individual's estate for nursing facility services, home and community-based services, and related hospital and prescription drug services.31 However, States may not recover from the estate of a deceased Medicaid enrollee who is survived by a spouse or certain other individuals.32 DOMA prevents these lien estate recovery protections from applying to a spouse of a married couple of the same sex.

      The CMS Letter provides that States may (but are not required to) extend protection to same-sex partners (including spouses of the same sex) under existing law barring estate and lien recovery when proceeding would create an undue hardship for a recipient’s heirs.33 States may decide the appropriate criteria for undue hardship.

Retirement Benefits

DOMA strikes at the heart of private spousal retirement protections. Most private retirement plans (whether provided by an employer or employee organization) are subject to a federal law known as ERISA (Employee Retirement Income Security Act) and the federal Internal Revenue Code.34 ERISA provides substantive rights to spouses. 35

  • Qualified Joint and Survivor Annuity (QJSA): Under ERISA, when an employee has a defined benefit or money purchase pension plan, the default method of distribution to the spouse is the joint and survivor annuity, unless the spouse affirmatively waives his or her right to receive the survivor annuity.36 Such an annuity provides a benefit to the retiree during his or her life, and then continues the benefit as an annuity paid to the surviving spouse in the amount of at least 50% and not more than 100% of what the retiree received during his or her lifetime.37 These annuity and spousal waiver protections are not required to be available to married same-sex couples and non-spousal annuitants, although an employer may draft a plan to provide annuity options with non-spousal annuitants.
  • Qualified Pre-retirement Survivor Annuity (QPSA): Under ERISA, when an employee vested in a defined benefit or money purchase pension plan dies before retirement, an opposite-sex surviving spouse must be offered a QPSA, unless the spouse affirmatively waives his or her right to receive the QPSA. A QPSA generally is a 50% survivor annuity for the life of the surviving spouse. As with the QJSA, the QPSA and spousal waiver protections are not required to be available to married same-sex couples and non-spousal annuitants, although an employer may draft a plan to permit same-sex couples and non-spousal annuitants to receive a pre-retirement survivor annuity.
  • Required Minimum Distributions: The tax law provides favorable treatment to a spousal beneficiary of most forms of retirement plans, allowing the spouse to defer the payment of death benefits (and associated taxes) from a decedent’s plan until the spouse attains age 70½.38 In contrast, because of DOMA, a surviving spouse of the same sex whose decedent spouse was older will be required to commence distributions earlier than an opposite sex spouse, resulting in accelerated income and a loss of a valuable tax-deferral opportunity.
  • Benefits Upon Divorce: As a general matter, benefits from a retirement plan that is subject to ERISA are reserved to the employee/retiree.39 But if that employee or retiree divorces, the retirement assets may be viewed as marital property to be divided between the spouses so that some or all of those assets may be awarded on a tax-free basis to a non-employee (former spouse) through a “Qualified Domestic Relations Order” (QDRO).40 Such an order is a court decree that relates to child support, alimony payment or marital rights of a former spouse. A procedure allowing for the tax-free division of an IRA upon divorce or legal separation is also available.41 In each case, after any transfer, the non-employee spouse becomes responsible for income taxes on distribution.

    Because of DOMA, married same-sex couples have no access to a QDRO or other procedure for dividing retirement benefits upon divorce. This makes it extremely difficult to divide the marital property of a couple upon divorce fairly, such as when one ex-spouse had been the primary earner and the other had primarily cared for children or other dependents.

Federal Civilian Retirement Benefits:

The Federal Employees Retirement System (FERS) and the Civil Service Retirement System (CSRS) provide certain retirement benefits to qualified federal retirees and their spouses, unless they are same-sex spouses.

  • FERS provides automatic coverage for employees hired after 1983 and consists of a three-pronged approach to providing retirement security: Social Security, a “Basic Benefit Plan,” and a “Thrift Savings Plan.” All three of these options provide surviving spousal benefits upon the death of a qualified retiree, but do not provide benefits to a surviving spouse of the same sex as the employee.42
  • CSRS covers all employees hired before 1984 who did not transfer into the FERS. It provides an annuity for a surviving spouse of an employee who died during employment or after retirement. However, surviving spouses of the same sex as the employee/retiree are not covered because of DOMA.44

Retirement Protections with “Spousal IRA”:

Married couples filing their income taxes jointly may fund an IRA for a non-working spouse, who thus may build retirement assets even while taking time out of the workforce to care for children or elderly parents.45 This ability does not exist for a non-income earning same-sex spouse.

II. DOMA Adds Costs to Businesses, Employers and Employees.

In 2010, 70% of full-time U.S. workers in private industry had access to medical benefits, and 65% to an employer-provided retirement plan.46 DOMA harms both employers and employees, by making it more difficult and costly for businesses to provide these benefits on an equal basis to married gay and lesbian employees.

Among the spousal benefits that employers are either prohibited from providing or are unable to provide their gay and lesbian married employees without incurring substantial administrative and financial burdens, are:

  • Tax-advantaged fringe benefits: Employers may provide a variety of fringe benefits to employees, such as allowing an employee to use pre-tax dollars to pay health insurance premiums, or to fund a “flexible spending account” which is then used to reimburse certain medical costs with pre-tax dollars.47 The only persons for whom an employee can use such an account are “dependents” as defined by law, such as a spouse, a child, and other qualifying tax dependents.48

    As a result of DOMA, an employee cannot use any of these tax-advantaged benefits for his or her spouse of the same sex, unless the spouse qualifies as a tax dependent. A spouse in a same-sex couple will not qualify as a dependent unless a number of requirements are met, including having little or no earnings.

  • Taxation of spousal benefits: DOMA imposes discriminatory tax treatment that burdens both employers and employees. When a married employee receives employer-provided health benefits, the value of the health insurance for the spouse, child or other qualifying tax dependent is not subject to federal income tax even though such benefits are a form of compensation to the employee.49 But as a result of DOMA, that exclusion does not apply to spouses of the same sex as the employee; the employer and the employee must treat the fair market value of the spouse’s coverage as taxable income to the employee.50 On average, this “imputed” income requires that employees with partners pay $1,069 more annually than married employees with similar coverage.51

    For businesses and employers, determining and recording the amount of “imputed” income due to spousal health coverage adds administrative costs and burdens to payroll systems. There are also increased payroll taxes since employers pay a portion of federal social security (FICA) and unemployment (FUTA) taxes based on employee’s wages.52 A growing number of businesses, including Google, Credit Suisse, JetBlue, Morgan Stanley, OPower and Cisco, have begun reimbursing their gay and lesbian employees for the additional tax burden they must pay due to DOMA’s unfair treatment of their spousal health benefits as taxable income.53 These companies incur even greater costs by reimbursing their employees for the federal government’s discrimination and also paying additional payroll taxes on those reimbursements.

  • Family Medical Leave: The Family Medical Leave Act (FMLA) provides eligible employees with 12 workweeks of unpaid leave in any 12-month period to care for a spouse with a “serious health condition.”54 Because of DOMA, FMLA does not require employers to provide the same protections for married gay and lesbian employees. This defeats the FMLA’s goal of helping workers balance family and work commitments, although some employers take on the burden of crafting “workarounds” to provide access to leave.

    Generally speaking, access to health coverage through a spouse’s plan is a major benefit of marriage. Unfortunately, a significant number of employers refuse to provide spousal health insurance to their employees with spouses of the same sex, citing DOMA as their reason.

  • Health Benefits and “ERISA Plans”: Most large employers as well as unions and employee organizations provide health coverage through “self-insured” arrangements, and, under present law, are exempt from state laws regulating employee benefit plans. These self-insured entities are governed by the terms of the plan document as well as by ERISA.55

    Regulation of benefit plans by ERISA rather than by state law has important consequences for married same-sex couples. In contrast to state insurance contracts that recognize the marital relationship, self-insured plans have the discretion to provide coverage to employees with spouses of the same sex, or not to, even as they cover other married employees.56 Some self-insured entities have chosen not to provide the same coverage for spouses of the same sex and point to their interest in conforming to the federal definitions of “marriage” and “spouse” in DOMA as the basis for their decision.57

In addition, there are a number of health insurance-related spousal benefits that employers are otherwise required to provide to their employees on an equal basis, unless a married employee is gay or lesbian. These include:

  • Continuing Health Coverage: COBRA requires private employers with 20 or more employees to offer continued coverage for a defined period of time to employees and their covered dependents under certain circumstances, such as job termination, death and divorce.58 DOMA excludes married gay and lesbian couples from automatic protection, leaving it up to the individual employer to decide on continuing coverage.

  • Open Enrollment Periods: Under “HIPAA” (Health Insurance Portability and Accountability Act), marriage is a “qualifying event” that allows an employee to immediately add a new spouse to his or her health plan if the health plan allows for spousal coverage.59 Upon marriage to a spouse of the same sex, however, the employee must defer enrolling for coverage until the annual open enrollment period.
  • Hardship Distributions From Retirement Accounts: In emergencies, an employee may use a pre-retirement “hardship distribution” from a retirement plan (such as a 401(k) plan) to pay a spouse’s medical expenses. Married same-sex couples facing the same emergencies do not have this automatic protection, although some employers assume the burden of crafting their plans to permit pre-tax hardship distributions for a “primary beneficiary” designated by the participant.60

Finally, due to DOMA, federal employees are denied certain spousal employment benefits, including:

  • Federal Employee Health Benefits: The Federal Employees Health Benefits Program (FEHB) is the key program providing health benefits (including dental, vision, and participation in Health Care Flexible Savings Accounts, among others) to federal employees, retirees and their survivors. A “member of family” includes “the spouse of an employee or annuitant.”61 Under existing law and regulations, the spouse of an employee who selects “Self and Family” coverage is automatically enrolled for purposes of the FEHB program and receives health care coverage.62 All of these protections are denied to the employee for the benefit of his or her spouse of the same sex.
  • Health Benefits – Continuation after Death and Divorce: Family health insurance through the FEHB program continues for the family as long as a spouse or dependent child receives a survivor benefit.63 Some divorced spouses may retain FEHB coverage indefinitely as long as they pay for the coverage,64 while others can retain coverage for 36 months as long as they pay the premiums and an administrative fee.65
  • Family Leave: Most federal employees may use up to a total of 12 administrative workweeks of sick leave each year to care for a family member with a serious health condition. Spouses are included as family members.66
  • Compensation for Work-Related Injury or Death: If a federal employee becomes disabled from a work-related injury, the employee is paid 33% of his or her salary if the employee has no dependents, and 75% if the employee does have dependents, such as a spouse.67 If death results from the injury, a surviving spouse receives either 50% of the deceased employee’s salary, or 45% plus another 15% for each additional child.68

III. DOMA Discriminates Against Taxpayers.

The 2004 GAO report identifies a total of 198 statutes involving marital status and taxation.69 DOMA essentially forces the IRS to ignore reality and pretend that gay and lesbian married couples are single individuals or a head of household for purposes of taxation. The following are just a few examples of how DOMA discriminates against married same-sex couples as taxpayers.

Income Taxation:

  • Filing Status: Marital status is the central consideration in determining filing status, as only married couples have the option to file joint or separate returns.70 Only married couples filing jointly may pool deductions on such a return, such as the deduction for uncompensated medical expenses to meet the required threshold for a federal tax deduction.71 Yet, DOMA forces married same-sex couples to disrespect their very own marriages when they complete and sign their federal forms by requiring them to file their federal tax returns as unmarried persons. No one likes being compelled to tell an untruth, even if it is a lawful one.
  • Tax Preparation: DOMA also makes tax preparation complicated and expensive. Like others, married same-sex couples typically commingle their finances and share expenses. However, for tax reporting, DOMA requires them to unwind what is joint and re-allocate expenses on an individual basis.

    In states that respect the marriages of same-sex couples, those couples must file their state tax returns under the correct married status. However, some items on a “married” state return require the taxpayer to have a married federal return in place first. This means that married same-sex couples must still prepare a pro forma “married” federal return (that is never actually filed because the IRS cannot accept due to DOMA) in order to complete their state income taxes returns correctly. Preparation of a federal “dummy” return can be a significant additional expense.

    Of course, some married same-sex couples will pay more in federal income taxes when the federal government respects their marriages because of the so-called “marriage penalty.” Typically, spouses who earn comparable amounts will pay more tax than if they had filed two returns as unmarried persons. But see Section V, below. The 2004 CBO Report analyzing the budgetary impact of federal recognition of marriages between persons of the same sex estimates that federal individual income tax and estate tax revenues would actually increase between $400 million a year to $700 million per year if DOMA did not mandate the non-recognition of marriages of same-sex couples.72

  • Divorce Taxation: Beyond division of retirement accounts (see above, Section I), tax laws help a married couple unwind their economic partnership and divide their marital assets equitably during a divorce, without extra tax burdens.
    • Property transferred between spouses due to a divorce is not taxable.73 But if a married same-sex couple divorces, transfers of the home and other assets are taxable.
    • If alimony (also known as “spousal support”) or separate maintenance payments are ordered to be paid to a former spouse, the amounts paid are deductible to the person making the payments on his or her tax returns, thereby lowering the amount of tax due.74 None of these exemptions from taxation extend to same-sex divorced couples as a result of DOMA.

Gift and Estate Taxation:

  • Transfers between Spouses: Spouses have an unlimited ability to make gifts and transfer property to one another without incurring taxes. But this is not true for same-sex married spouses because of DOMA.75 As a practical matter, a homeowner may be reluctant to make his or her same-sex spouse a joint owner of the home because of the gift tax consequences.
  • Bequests to Surviving Spouses and Estate Tax: The estate tax marital deduction allows a reduction in the amount of the fair market value of any property passing to the decedent's spouse from the deceased individual's gross estate tax.76 This marital deduction reduces the size of the estate and lets married couples postpone the federal estate tax that otherwise would have to be paid on a married person's estate. In effect, the deduction defers any tax on property that passes to the surviving spouse until the surviving spouse's death. DOMA strips away this crucial deduction for married same-sex couples.

IV. DOMA Hurts Military Families.

DOMA denies service members and veterans married to spouses of the same sex access to critical benefits intended to support our military families and thank them for their service. The 2004 GAO Report found 78 statutes related to marriage and service members and 104 statutes77 related to marriage and veterans. None of these statutes apply to service members and veterans married to spouses of the same sex. The following are among the most valuable protections that DOMA denies to our service members and veterans.

Service Members

  • Emergency Notification: Spouses of gay and lesbian active duty service members cannot be identified as Primary Next of Kin (PNOK) or Persons Authorized to Direct Disposition (PADD) on DD Form 93, Record of Emergency Data.78 Because they cannot be identified as PNOK, the spouses of gay and lesbian service members are notified less quickly when their loved ones are injured, killed, or missing in action, and because they cannot be designated PADD, they must depend on others to take care of their loved ones’ remains. Unlike other military spouses, men and women married to service members of the same sex are not given a travel allowance to attend the burial ceremonies if their loved one dies on duty.79
  • Health Care: Gay and lesbian spouses of qualified active duty military, active duty service families, and retirees are denied health coverage through TRICARE, the Department of Defense’s managed health care program, due to DOMA.80
  • Housing: In order to enable them to obtain housing in the local market where government housing is not provided, service members with qualified dependents are entitled to receive the Basic Allowance for Housing at the significantly increased “with dependent rate.”81 Unlike other married service members, married gay and lesbian service members are not eligible for the “with dependent rate” because their marriages are disrespected by DOMA.
  • Retirement: Members on active duty for 20 years or more are eligible for retirement under a number of different systems that depend on the date the retiree first entered the military. Surviving spouses generally receive 55% of the retired pay under the Uniformed Services Survivor Benefit Plan or one of its corollaries, which is denied to surviving spouses of the same-sex due to DOMA.82
  • Death Gratuity: A one-time non-taxable cash payment of $100,000 is made in the event that a service member on active duty or in a variety of other circumstances dies. It is paid to survivors in a prescribed order with a surviving spouse receiving highest priority, unless the surviving spouse is of the same-sex as the deceased.83


  • Education and Employment Benefits: Military spouses may be eligible for education benefits under the G.I. Bill, depending on the duration of their spouse’s service, or the Dependents’ Educational Assistance program, if their spouse is disabled, captured, or missing in action.85 Spouses of service members disabled, captured, or missing in action may also be eligible for job counseling, training, and placement services,86 and employment preferences for federal government jobs.87 Because of DOMA, none of these benefits are available to the spouses and surviving spouses of gay and lesbian veterans.
  • VA Guaranteed Home Loan Program: Surviving spouses of service members who die in active duty, or as the result of service-connected disability, may be eligible to obtain favorable financing on home mortgage loans under the VA Guaranteed Home Loan Program while they remain unmarried.88 DOMA denies the surviving spouses of gay and lesbian veterans access to this program, which helped over 500,000 veterans to become homeowners in fiscal year 2012 alone.89
  • Disability Benefits: Veterans with at least a 30% disability are entitled to increased disability compensation if they have a spouse.90 In 2013 that amount is $157/month. Because of DOMA, married gay and lesbian veterans who are disabled receive less disability compensation than other disabled married veterans.
  • Death Benefits: There are several spousal benefits related to a veteran’s death. If the veteran’s death is service connected, the surviving spouse may choose either monthly dependency and indemnity compensation payments or a death pension.91 Such a spouse is also entitled to a one time payment, and if there is no spouse, it is provided to the next of kin.92

    In some instances, death pensions may be available to low-income survivors of service members.93 “Dependency and Indemnity Compensation” or “Death Pension” is available when the veteran was 100% disabled for a period of 10 or more years immediately prior to death and the surviving spouse is income eligible.

    Spouses of veterans who are eligible for internment in national cemeteries are also permitted to be interred in national cemeteries.94 But because of DOMA, otherwise eligible spouses of gay and lesbian veterans cannot be interred alongside their loved ones in national cemeteries.

    Surviving spouses may also be eligible for VA medical care.95

  • Other Allowances: There is an allowance for spousal benefits when a service member has disappeared.

V. DOMA Tears Apart Families and Hurts Children

All of the harms described above not only harm same-sex married couples but also any children they may have. Denying federal marital protections to the parents affects the economic security and stability of the entire family. Just a few examples include:

  • Social Security Parent Benefits: Sometimes tragedy strikes and a parent dies in his or her working years. The spouse of a qualified deceased worker may be entitled to a benefit as a spouse (“parent’s benefits”) in addition to Social Security payments for the children through age 18 (“children’s benefits”).97 Children may be up to age 19 if still enrolled full time in primary or secondary school or up to age 22 if diagnosed with a disability.98 Surviving spouses of the same sex as the deceased worker are not eligible for this crucial protection
  • Federal Income Taxes:Many married same-sex couples have children, and in those families99, some have only one working parent or a parent or parents working a reduced schedule in order to care for those children. These families are the ones most likely to “benefit” from being able to file their taxes jointly as “married” rather than as an “individual” or “head of household.” However, these couples pay more in federal income taxes than identically-situated taxpayers whose marriages the federal government respects, thereby taking money away that could be used for the family’s needs.

    Most harmful to children is when DOMA literally tears a family apart because one parent is not a lawful permanent resident of the United States. Although family unity has been a staple of our immigration law since at least 1952,100 DOMA withholds important protections to gay and lesbian families, some of whom are parents to children living in the United States.

  • Immediate Relative Spousal Visas: A citizen of the U.S. may file a petition101 for an “immediate relative” visa for a non-citizen spouse, unless that spouse is gay or lesbian due to DOMA.102 Immediate relatives are not subject to any direct numerical limitations on entry visas.103
  • Naturalization for Spouses of U.S. Citizens: A U.S. citizen’s spouse, who has obtained the status of lawful permanent resident, may become a United States citizen if the spouse has: (1) continuously resided in the United States for at least 3 years since being admitted for permanent residence; (2) lived “in marital union” with the citizen spouse during that 3-year period; (3) been physically present in the United States for periods totaling at least 18 months of that 3-year period; (4) continuously resided in the United States from the time of application for citizenship to admission; (5) for all relevant times been a person of good moral character; and (6) complied with all other requirements for naturalization.104 This invaluable protection to keep a family together in the same country is denied to same-sex married couples due to DOMA.


While the breadth of DOMA’s harms is breathtaking as laid out in the 1997 and 2004 GAO reports, when one considers the groups of individuals who are hurt the most – including senior citizens, service members and veterans, taxpayers, employers and employees, and families and children – the stark picture of DOMA’s discrimination comes into focus. DOMA is counterproductive in that it burdens the ability of married gay and lesbian to Americans to grow old with dignity and security, fulfill their constitutional obligation as citizens and taxpayers, and protect their families and children.


1Report of the United States General Accounting Office, GAO/OGC-97-16, Defense of Marriage Act (Jan. 31, 1997), at 1, available at In 2004, the Government Accountability Office updated its 1997 Report and found 1,138 federal laws implicated by DOMA. Rep. “GAO-04-353R Defense of Marriage Act - Update to Prior Report” (Jan. 24, 2004), available at

2 See Dep’t of Defense Instruction (DoDI) 1300.18, § 6.1.3 (Aug. 14, 2009), available at

35 U.S.C. app. §§ 102(e)(1)(A)-(D), 501(c); 10 U.S.C. § 1787(a).

45 U.S.C. §§ 3110(a)(3), (b), 2302(b)(7).

528 U.S.C. § 455(b)(4).

62 U.S.C. § 31–2(a); 31 U.S.C. § 1353(a).

718 U.S.C. § 208(a); id. § 115.

842 U.S.C. § 402 (b), (c).

942 U.S.C. § 402 (b), (c). See also Social Security Online, Benefits for your spouse,; Social Security Benefits and the Defense of Marriage Act: Can I Do Anything Now to Preserve My Rights?, GLAD (Oct. 10, 2012), available at

10 Id.

1142 U.S.C. § 402 (e), (f). To qualify for the survivor benefit, the person has to be (a) 60 or older; (b) 50 or older and disabled; or (c) caring for a qualifying “child” who is entitled to a child’s insurance benefit based on the earnings record of the deceased. The person cannot have remarried before age 60 (or, if disabled, age 50) unless the later marriage has ended at the time of application, whether by death, divorce, or annulment.

12 Retirement Benefits, SSA Publication No. 05-10035, ICN 457500 (July 2012), available at

13 Id.

1442 U.S.C. § 402 (i).

15 Differences between Medicare Parts A, B, C, and D, U.S. Social Security Administration, available a,-b,-c-and-d (last visited on Nov. 5, 2012).

1642 U.S.C. § 1395r(b). See also Understanding Medicare Enrollment Periods, U.S. Dep’t of Health and Human Services (Nov. 2011), available at

17 Id. A person who is still working at age 65 who is covered by either an employer’s or union’s group health plan can opt to enroll in Medicare Part B anytime while still working or during the 8 months after either the employer’s insurance or his or her employment ends without incurring any penalty. 42 U.S.C. § 1395p.

18 Medicaid and CHIP Program Information, Centers for Medicare and Medicaid Services, available at visited on Nov. 5, 2012).

19 Eligibility, Centers for Medicare and Medicaid Services, available at (last visited on November 5, 2012).

20 For income and asset rules that apply to individuals in the long term care context, see 42 U.S.C. §§ 1382a, 1382b. For rules applicable to married couples, see id. & § 1382c(f).

21 Massachusetts law, for example, provides that “no person who is recognized as a spouse under the laws of the Commonwealth shall be denied benefits that are otherwise available under this chapter due to the provisions of [DOMA] or any other federal non-recognition of spouses of the same sex.” Mass. G.L. c. 118E, § 61.

There is an outstanding question about whether States that treat all married couples alike when determining Medicaid eligibility risk the loss of federal Medicaid funding for failure to comply with federal eligibility rules. Letters from the Department of Health & Human Services to the Commonwealth of Massachusetts dated May 28, 2004 and August 21, 2008, attached as Exhibits 1 & 2 to the Complaint in Massachusetts v. Department of Health & Human Services, D. Mass. Civil Action No. 09-cv-11156.

2220 C.F.R. § 416.1212( c).

2342 U.S.C. §1396r-5( c)(4), 42 U.S.C. § 1396r-5( c)(2)(B). The amount of the “Community Spouse Resource Allowance is set forth in 42 U.S.C. § 1396r-5(f)(2).

24 This “minimum maintenance needs allowance” is set forth in 42 U.S.C. § 1396r-5(d)(2). In addition, a community spouse may retain all of his or her own income once the other spouse is institutionalized. 42 U.S.C. § 1396r-5(b)(1).

25 The formulae for calculating the period of ineligibility are set out at 42 U.S.C. § 1396p (c)(1)(E).

2642 U.S.C. § 1396p (c)(2)(B)(i), (ii). Spouses of the same-sex might be able to avoid a period of ineligibility by showing that “assets were transferred exclusively for a purpose other than to qualify for medical assistance.” 42 U.S.C. § 1396p (c)(2)(C). Although this argument is untested, a transferor might argue that he or she transferred assets to prevent hardship or homelessness to another person, where that person is his or her state law spouse. Note that this showing may only be made “in accordance with regulations promulgated by the Secretary.” Id. In addition, a person might be able to argue that imposing a period of ineligibility “would work an undue hardship as determined on the basis of criteria established by the Secretary.” 42 U.S.C. § 1396p (c)(2)(D).

27 Letter from Cindy Mann, Director of Center for Medicaid, CHIP and Survey Certification, to State Medicaid Directors (June 10, 2011), available at

28 Undue hardship is described is The Deficit Reduction Act of 2005, Pub. L. No. 109-171 § 6011(d), 120 Stat. 4 (2006).

29 See n. 27, supra. See also Letter from Gloria Nagele, Associate Regional Administrator, Div. of Medicaid & Children’s Health Operations, U.S. Dep't of Health and Human Svcs., to Rene Mollow, Chief, Medi-Cal Eligibility Division, Cal. Dep't of Health Care Svcs. (May 18, 2012).

30 Estate Recovery and Liens, Centers for Medicare and Medicaid Services, available at (last visited November 5, 2012). The other individuals are a child under age 21, blind or disabled child of any age, or sibling who has an equity interest in the home. See generally 42 U.S.C. § 1396p(a)(1)(B) (authorizing lien); 42 U.S.C. § 1396p(a)(2)(prohibiting liens when a spouse or certain others reside in the home).

3142 U.S.C. § 1396p(b)(1)(A).

3242 U.S.C. § 1396p(b)(2).. The other individuals are a child under age 21 or blind or disabled child of any age.

3342 U.S.C. § 1396p(b)(2).

3429 U.S.C. §§ 1001 et seq.; see also Health Plans and Benefits: ERISA, U.S. Dep’t of Labor, available at (last visited on Nov. 8, 2012).

3529 U.S.C. § 1002 (2) (employee pension benefit plan). The substantive rights include the right to: (1) approve, with respect to certain types of retirement plans, the method of distribution to the participant; (2) receive benefits in the event of the participant’s death as a default beneficiary; and (3) share in the participant’s benefits in the event of a divorce or legal separation.

3629 U.S.C. § 1055. See also 26 U.S.C. § 417 (spouse may consent to a different form of benefit, such as a lump sum payment).

3729 U.S.C. § 1055(d); 26 U.S.C. § 417(b).

3826 U.S.C. § 401(a)(9).

3929 U.S.C. § 1056(d)(1); 26 U.S.C. § 401(a)(13)(a).

4029 U.S.C. § 1056(d)(3); 26 U.S.C. § 401(a)(13)(B), 414 (p).

4126 U.S.C. § 408(d)(6).

42 For more detail about FERS and Social Security in general, see FERS: An Overview of Your Benefits, RI 90-1, U.S. Office of Personnel Management (Apr. 1998), available at

43 Retirement Facts 1: Civil Service Retirement System, U.S. Office of Personnel Management, RI 83-1at 6 (Nov. 1997), available at

44 Id. at 7.

4526 U.S.C. § 219.

46 See U.S. Bureau of Labor Statistics, National Compensation Survey: Table 9. Healthcare benefits: Access, participation, and take-up rates, private industry workers (Mar. 2012), available at ; U.S. Bureau of Labor Statistics, National Compensation Survey: Table 2. Retirement benefits: Access, participation, and take-up rates, private industry workers (Mar. 2012) available at Typically, these benefits are offered through an “employer sponsored group health plan,” or “group health plan.” See 29 U.S.C. § 1167(1).

47 See generally 26 U.S.C. § 125(a) (cafeteria plans; pre-tax treatment limited to opposite sex spouses or dependents, as defined under 26 U.S.C. §152). Amounts received by an employee, directly or indirectly, from a health or accident plan or through a “flexible savings account” are excluded from gross income under 26 U.S.C. § 105.

48 Married employees with spouses of the same sex cannot use these benefits for a spouse by using pre-tax wages unless the spouse is also a tax dependent. For these purposes, a tax dependent is someone who lives in the same household as the taxpayer and the taxpayer furnishes more than one-half of the cost of maintaining such household during the taxable year. 26 U.S.C. §§ 105, 106, 152(d).

4926 U.S.C. § 106.

50 See Private Letter Ruling (“PLR”) 200524016, 2005 PLR LEXIS 278 at *23-24 (Mar. 17, 2005); PLR 200339001, 2003 PLR LEXIS 879 at **9-11 (June 13, 2003); PLR 9850011, 1998 PLR LEXIS 1650 at*10-13 (Sept. 10, 1998); PLR 9717018, 1997 PLR LEXIS 85 at *11-12 (Jan. 22, 1997).

51 See Center for American Progress & UCLA Williams Institute, Unequal Taxes on Equal Benefits, at 7 (Dec. 2007).

52 Id. at 5-7.

53 See generally Tara Siegel Bernard, A Progress Report on Gay Employee Health Benefits, New York Times Bucks Blog, (updated 10/31/12), available at

5429 U.S.C. § 2612(a)(1)(A)-(D). FMLA covers many, but not all employers. See, e.g. 29 U.S.C. § 2611(4)(A)(i) (FMLA applies to employer “who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year”); 29 U.S.C. § 2611(2)(B)(ii) (worker is not an “eligible employee” if the employee is at a worksite with less than 50 employees and the employer has less than 50 employees within 75 miles of that worksite).

5529 U.S.C. §§ 1001 et seq.; see also Health Plans and Benefits,

56 See, e.g. , New Jersey Civil Union Review Comm., First Interim Report of the New Jersey Civil Union Review Commission, (Feb. 19, 2008), available at

57 Cf. Anthony Faiola, Civil Union Laws Don’t Ensure Benefits, Wash. Post, (Jun. 30, 2007), available at (references situation where Federal Express refused to provide benefits to employees with same-sex partners in New Jersey on the basis of federal law while similarly providing benefits in California as a result of specific legislation signed into law to mandate coverage by employers doing business with the State).

58 Continuation of Health Coverage-COBRA, U.S. Dep’t of Labor (last visited on Nov. 8, 2012), available at Since COBRA is a right available through federal law, DOMA allows employers to deny COBRA continuation coverage to same-sex spouses.

59 Health Insurance Portability and Accountability Act, 29 U.S.C. §§ 1181-1183. See also Portability of Health Coverage, U.S. Dep’t of Labor (last visited on Nov. 8, 2012), available at

60 IRS Notice 2007-7 (Jan. 27, 2007); see also Pension Protection Act of 2006, (P.L. 109-280).

615 U.S.C. § 8901(5).

62 FEHB For Dependents, available at See also 5 U.S.C. §§ 8701-8914.

63 OPM-Federal Retirees – FAQ: Death Benefits, U.S. Office of Personnel Management (last visited on Nov. 8, 2012), available at

64 FEHB Continuation Coverage for Former Spouses U.S. Office of Personnel Management (last visited on Nov. 8, 2012), available at

65 FEHB Frequently Asked Questions About Divorce, U.S. Office of Personnel Management (last visited on Nov. 8, 2012), available at (no gay or lesbian married federal employee or his or her divorced or surviving spouse has these benefits).

665 U.S.C. §§ 6382-6383. See also Sick Leave to Care for a Family Member, U.S. Office of Personnel Management (last visited on Nov. 8, 2012), available at

67 When Injured at Work: Information Guide for Federal Employees, U.S. Department of Labor, Employment Standards Administration, Division of Federal Employees’ Compensation, CA-11 (last visited on Nov. 8, 2012), available at

685 U.S.C. § 8133.

69 Report of the United States General Accounting Office (1997), supra note 1, at 5-6, 11.

7026 U.S.C. § 6013.

7126 U.S.C. § 213 (uncompensated medical expenses of the taxpayer, his or her spouse, or his or her dependents are deductible from income to the extent that such expenses exceed 7.5 percent of the taxpayer’s adjusted gross income). The taxpayers must file as “married filing jointly” in order to pool such deductions. 26 U.S.C. § 6013.

72 The Potential Budgetary Impact of Recognizing Same-Sex Marriages (June 1, 2004), available at The CBO reaches this result by assuming access to equal marriage in all 50 states and the recognition of those marriages by the federal government.

7326 U.S.C. § 1041 (no gain or loss realized on transfers between spouses related to divorce).

7426 U.S.C. § 215 (a).

7526 U.S.C. § 1041.

76 I.R.C. § 2056 (a) (bequests, etc., to surviving spouse).

77 The 104 statutes related to marriage and veterans include 92 mentioned in the 1997 GAO Report, 11 statutes added in the 2004 GAO Report, and one statute (5 U.S.C. §2108) regarding veterans’ hiring preferences.

78 See 10 U.S.C. § 1482(c) (limiting designation as PADD to blood and adopted relatives, surviving spouse, and, if none of these can be located, a person acting “in loco parentis” to the decedent); DD Form 93, available at

7937 U.S.C. § 411f limits the burial ceremony travel allowance to “eligible relatives” of the service member, including the surviving spouse, children and stepchildren, parents and siblings of the deceased, as well as the PADD. Designation as PADD is itself limited to exclude spouses of the same sex. See supra note 51.

80 TRICARE Eligibility, U.S. Dep’t of Defense (last visited on Nov. 8, 2012), available at

8137 U.S.C. § 401(a) (defining “dependent” for purposes of the Basic Allowance for Housing).

82 Spouse Coverage, U.S. Dep’t of Defense (last visited on Nov. 8, 2012), available at

8310 U.S.C. 1475-1476. See also, Death Gratuity, (last visited on Nov. 8, 2012), available at

84 Title 38 defines “spouse” to mean “a person of the opposite sex who is a wife or a husband,” 38 U.S.C. § 101(31), and “surviving spouse” to mean “a person of the opposite sex” of the veteran, 38 U.S.C.A § 101(3). In both instances, any restrictions on who can be a covered spouse would fall for the same reasons as DOMA. In addition, this language was added by Congress to ensure that the spouses of female as well as male veterans are covered by the benefits conferred by Title 38, not to exclude spouses of the same sex. See Amicus Br. of Family Law Professors at 12 n. 8, Massachusetts v. United States Dep’t of HHS, 682 F.3d 1 (1st Cir. 2012) (No. 10-2204).

85 See 38 U.S.C. § 3319 (eligibility for spousal benefits under the G.I. Bill); 38 U.S.C. § 3501 (eligibility for spousal benefits under the Dependents’

8638 U.S.C. § 4101.

875 U.S.C. § 2108.

8838 U.S.C. § 3701.

89 Lisa Prevost, V.A. Loans Surge in Fiscal Year, N.Y. Times, (Oct. 11, 2012), at RE7, available at

9038 U.S.C. § 1115.

9138 U.S.C. §§ 1311 (entitlement to monthly dependency and indemnity compensation), 1317 (survivor’s choice regarding benefits).

9210 U.S.C. § 1477(b) (automatic distribution of benefit to spouse in the absence of any designated recipient). Note that a service member may designate someone to receive this benefit under §§ 1475 or 1476 even if not legally related to the eligible individual.

9338 U.S.C. § 1543 (net-worth limitation on non-service connected death pension).

9438 U.S.C. § 2402.

9538 U.S.C. § 1781.

9638 U.S.C. § 1158.

9742 U.S.C. § 402 (g).

9842 U.S.C. § 402 (d).

99 According to data from the 2010 American Community Survey, there are nearly 44,000 married same-sex couples in the United States raising children and more than 71,000 unmarried same-sex couples in the United States raising children. See Daphne Lofquist, Same Sex Couple Households: American Community Survey Briefs, United States Census Bureau, ACSBR/10-03, p. 3 (Sep. 2011), available at

100 See, e.g., Fornalik v. Perryman, 223 F.3d 523, 525 (7th Cir. 2000) (“United States immigration law … sets family unity as one of the principal goals of the statutory and regulatory apparatus”).

101 Petition for Alien Relative, U.S. Citizenship and Immigration Services, Form I-230 (Rev. 06/05/02) (Fee Change 01/21/05), available at

1028 U.S.C. § 1154(a)(1)(A)(i), (b) and (c) (the right to file a petition and investigation of facts); 8 U.S.C. §1151(b)(2)(A)(i) (“Immediate relative” means “the children, spouses and parents of a citizen of the United States ….”). See also 8 CFR §§ 103.2, 204.1, 204.2 (general information about immediate relative and family-sponsored petitions).

103 See 8 U.S.C. §1151(b).

1048 CFR § 319.1. For other circumstances in which spouses of U.S. citizens can be admitted to citizenship, see generally 8 U.S.C. §§ 1430(a), (b), (d), (e) (married persons and employees of certain non-profit organizations); 8 CFR §§ 319.2, 319.3.