TOPICS > Politics

New Battlegrounds Ahead in Fight Over Same-Sex Marriage

June 27, 2013 at 12:00 AM EDT
A day after the high court released rulings on gay marriage, Jeffrey Brown talks to Winnie Stachelberg of the Center for American Progress to learn how it will impact federal benefits for same-sex couples. Then New York Attorney General Eric Schneiderman and Rep. Vicky Hartzler, R-Mo., join him to discuss political implications.

JEFFREY BROWN: And we have two takes on questions being asked about the day after the rulings.

First, how the court’s decision — decisions impact federal benefits for same-sex couples and the continuing challenges ahead.

Winnie Stachelberg joins me to explain. She’s an executive vice president at the Center for American Progress.

And welcome to you.

WINNIE STACHELBERG, Executive Vice President, Center for American Progress: Great to be here.

JEFFREY BROWN: I want to pick up first on what the president was just saying about this issue of couples married in one state moving to a state where perhaps that’s not recognized.

How big a deal, first, is this patchwork system that we have?

WINNIE STACHELBERG: Well, the patchwork system is a very big deal, which is why we are eager to have marriage equality in all 50 states, because the patchwork just doesn’t work for a married couple.

What exists right now is in the 13 states and the District of Columbia where are you legally married, you are legally married for the purposes of state benefits, and now, with DOMA’s demise, federal benefits, the tricky issue comes up if you have a legal marriage in Massachusetts, one of those states, and then you move to Alabama. You’re still married, and the question now remains, do you get federal benefits living in Alabama?

JEFFREY BROWN: Well, pick up on that. Now, that’s after DOMA, right? So, what is happening right away after yesterday’s rulings for federal agencies to start making decisions like that?

WINNIE STACHELBERG: Well, as you said in your setup piece, what is happening right now is federal agencies are moving to change forms, to promulgate regulations to make clear that if you are a married couple living in one of those states and you are legally married, federal benefits will flow to you, so whether that’s Social Security survivor benefits, federal health benefits, benefits that go to people in the military.

Those will all flow to the people who are legally married in those 13 states and the District of Columbia. And the federal agencies are moving as quickly as they can. There’s a 25-day window for the decision to take effect. But those agencies are moving now to train workers, to change forms, and to get in place the proper forms and statistics and all of that so that those benefits can flow to those couples.

JEFFREY BROWN: If I understand this right, one of the issues, though, is that these agencies define marriage, when a marriage is valid, differently, according to where it might have taken place, where a couple lives now, et cetera.

WINNIE STACHELBERG: That’s exactly right. So, right now, there is a place of celebration or a place of domicile rule.

And various benefits flow depending on whether the agency follows a place of celebration or a place of domicile rule. For example, Social Security Administration, spousal benefits, survivor benefits, very important to gay and lesbian couples, very, very important, and those flow from a place of celebration.

So, for the purposes of Social Security benefits, those should start to flow to gay and lesbian married couples right away. There are other benefits that are dependent on a place of domicile rule. In other words, you are married in a certain state and you reside in that state, you’re OK. But if you are married in a certain state and you move to another state, those federal benefits, it’s a little trickier.

JEFFREY BROWN: And some of these other things, military veterans’ benefits, immigration laws?

WINNIE STACHELBERG: Interestingly, on immigration laws, those follow a place of celebration rule.

So, for the purposes of immigration law — in fact, yesterday, you saw — minutes after the Supreme Court ruled, you saw a New York immigration judge grant a binational couple — sort of ended their deportation proceedings because DOMA fell in New York State, where the couple was legally married.

JEFFREY BROWN: The president asked Attorney General Holder to review federal benefits at all of these agencies that we’re talking about. Some of these things can be done by executive action. Do some of them require Congress?

WINNIE STACHELBERG: That is unclear, whether all of them can be taken care of through executive action. The advocates, we are asking this administration to issue an executive order to move that any agency that requires a place of domicile rule, in other words, where you are — where you live, not where your marriage was celebrated or solemnized, that the executive order be issued to make clear that it is in fact a place of celebration.

JEFFREY BROWN: And do you expect all of this to — to the extent that there is a continuing disconnect, where we started, among states, do you expect more litigation to rise out of all this?

WINNIE STACHELBERG: Well, I think right now we’re focused on ensuring that the benefits flow to those couples who are legally married in these states.

One other interesting note is those in active military duty through the Pentagon, about 30 percent of the compensation of someone in the military is base pay, is salary. But about 70 percent of that compensation is actually benefits. And the Defense Department is moving very quickly to ensure that gay and lesbian married couples get the kinds of benefits that their heterosexual counterparts get as well.

JEFFREY BROWN: All right, Winnie Stachelberg, thank you. Thank you very much.

WINNIE STACHELBERG: Pleasure to be here. Thanks.

JEFFREY BROWN: And now we turn to some of the political reverberations of the decisions from New York Attorney General Eric Schneiderman and Republican Congresswoman Vicky Hartzler of Missouri.

Well, welcome to both of you.

Eric Schneiderman, I want to start with you. You have been a strong proponent of same-sex marriage. Pick up first on the discussion we were just having about this patchwork of laws. How big a problem is it, do you think? What issues does it raise for you?

ATTORNEY GENERAL ERIC SCHNEIDERMAN, New York: Well, we had a patchwork before. I mean, some states, like New York, in our state, our legislature passed, our governor signed a law allowing same-sex marriage.

But, up until yesterday, our marriages and our married couples, including Edie Windsor, the plaintiff in the case that struck down DOMA, were not treated with the same dignity and respect as all other marriages. So, we still have a patchwork, but we now have the federal government taking its thumb off the scale, if you will, and saying that, at least for federal purposes, under the Fifth Amendment, the federal government cannot, as Justice Kennedy wrote, write inequality into the U.S. code.

And we expect the government to take action, as the president has indicated, to clean up some of the remaining problems administratively with that. But now New York marriages and marriages from Massachusetts and everywhere else, people who are legally married and the children they are raising are going to be treated by the federal government with the same dignity and respect as every other marriage. And that is a great step forward for New Yorkers and for equality.

JEFFREY BROWN: And, Congresswoman Hartzler, same question to you, as someone who has been a strong opponent of same-sex marriage. What do you make of the situation with the patchwork around the nation?

REP. VICKY HARTZLER, R-Mo.: Well, I think it speaks to why they passed that initially, that marriage at the federal level is between one man and one woman, because there’s over 1,000 different federal laws that have to do with marriage.

And so it was for a very practical reason. It wasn’t for — against — animus against anyone, as if Justice Kennedy portrayed. It was because of a very practical reason. And I believe in dual sovereignty, and that the states should be able to make laws governing states, and the federal government should be able to make laws regarding the federal government.

And it makes sense for children that we have and uphold marriage as between one man and one woman. It’s for the best for them, and we should be able to uphold that ideal for them.

JEFFREY BROWN: Eric Schneiderman, where do you see the politics now coming out, out of yesterday’s decision? Where are we now when you look around at different states?

ERIC SCHNEIDERMAN: That I think that — I think the politics are and were clear, and I think the latest surveys show something like 80 percent of Americans under the age of 30 favor same-sex marriage and equality of all those marriages.

And I have to say that the politics were moving toward equality, the same way the politics of integration, an end to racial discrimination had been moving towards equality. This is a part of our American tradition. And it’s not — one of the most important things about the decision is it puts to rest the argument that there is anyone harmed by the recognition of same-sex marriages.

There is no person, there’s no straight marriage, there’s no institution that is harmed. That was — they had years to come up with this. Justice Kennedy didn’t find it. The only thing left after the Prop 8 case is cleared away is the decision of the district court in California, 136 pages, same principle. Equal justice under law requires the recognition of all marriages.

The only people who are being harmed were the millions of same-sex couples across America, and the children that those couples are raising, because you may not like the fact that there are gay people in loving relationships and that they’re raising lots of kids, but they are. And now, since the Supreme Court ruled, they are entitled to equal treatment by the federal government.

And I think that that is just going to continue the trend in states around the country as we move, as we have always as a country, towards greater inclusion and greater equality with every generation.

JEFFREY BROWN: Well, let me ask Congresswoman Hartzler, because, yesterday, I note you joined a group of conservative legislators, lawmakers, and talked about coming up with some kind of response to this. What kind of response would that be?

VICKY HARTZLER: Well, first, I think it’s very important to note that the Supreme Court didn’t make same-sex marriage the law of the land across the country, and they’re going to allow and uphold the 35 states who have said that marriage is between one man and one woman.

And I would say that it’s certainly not inevitable. We’re going to continue this discussion, but we even had North Carolina last year that voted to uphold marriage between one man and one woman. And I think it’s a disgrace for the democracy that the Supreme Court didn’t allow the millions of people in California who spoke on this issue, not once, but twice, to have a voice and a say in this.

And their attorney general abandoned them. So, I think that’s a real shame. And that’s what was at stake yesterday, is, is the will of the people going to prevail or are five unelected bureaucrats going to override the will of the people and silence their voice? And that’s what happened.

JEFFREY BROWN: Let me just stay with you. Do you not see the kind of cultural shift, as well as political shift, that Mr. Schneiderman was talking about?

VICKY HARTZLER: Well, it certainly is a discussion that we are having as a nation. But I don’t think that the story is totally told on this at all.

And, like I said, there’s a vast majority of Americans who support marriage between one man and one woman, because they know it’s a special institution that sets up the best place to raise children in this society, and that’s why government is in the marriage business. It’s not because it cares about romance. It’s because it cares about the rights of children and promoting an environment that is best for their upbringing.

And so I think many people still uphold that ideal, and still want that. And so we’re going to continue to see that advanced in this country.

JEFFREY BROWN: Well, Mr. Schneiderman, it is true that the majority of states still have bans. So there is still …

Go ahead.

ERIC SCHNEIDERMAN: There were a lot of states in 1967 that banned interracial marriage when the court ruled that it was unconstitutional in Loving v. Virginia.

The only children that are being hurt by states that discriminate against marriage equality are the kids being raised by gay couples. There’s no harm to our families, straight families who have kids or want to be married or get divorced from authorizing and empowering same-sex couples.

But there is a reason we have a Constitution in this country. There is a reason that there are some laws you just can’t pass. You can’t pass a law saying black people aren’t equal to white people or women aren’t equal to men. And, yesterday, there was a very strong statement that you cannot pass a law that has no other justification. And the proponents of these laws had years to come up with it, and they had nothing.

You can’t pass a law that discriminates against gay couples and gay people from — and that’s just in keeping with our American tradition. And I think, in 20 or 30 years, people will look back on this as we now look back on Loving v. Virginia and the days of prohibition of interracial marriages and say, what were they thinking?

I’m proud to be an American, a New Yorker, and a part of the American legal tradition today. And I thank Edie Windsor and all the folks who have been fighting for their rights and the rights of all of us for years.


ERIC SCHNEIDERMAN: And I look forward to other states following New York.

JEFFREY BROWN: And let me just have a quick last word from you, Vicky Hartzler. Do you think that we’re seeing — we’re going to see more litigation potentially back up to the Supreme Court on this subject?

VICKY HARTZLER: Oh, absolutely.

There’s going to be a lot of litigation on this ruling. There wasn’t a clarity on a lot of it. And the American people still believe that fathers and mothers are important in the lives of their children, and they’re going to continue to see that marriage does matter and that we need to continue to advance and uphold those ideals in our country.

JEFFREY BROWN: Vicky Hartzler, Eric Schneiderman, thank you both very much.



JEFFREY BROWN: And, online, our resident Social Security expert weighs in on the new benefits that can now be — excuse me — accessed by same-sex spouses. That’s on our Making Sen$e page.