December 7. 2012 - WASHINGTON - The Defense of Marriage Act isn't so much about marriage as it is about money.
Gay and lesbian married couples who have challenged the law and tens of thousands like them are denied the same federal benefits that go to opposite-sex couples, whether they are married, divorced or widowed. That's because the law defines marriage as between one man and one woman.
At last count there were 1,138 provisions in federal laws that listed marital status as a factor in determining benefits, rights and privileges. The list, prepared by the Government Accountability Office, was last updated in 2003.
The most prevalent are tax laws. Despite their marriage certificates, gay and lesbian spouses cannot get tax-free health benefits from their employers. That alone costs them about $1,000 a year on average, says Gary Gates, a demographer who studies gay and lesbian trends at the UCLA School of Law's Williams Institute.
Gays and lesbians can't file joint federal tax returns, as heterosexual married couples can, which often saves them thousands of dollars. If gays or lesbians divorce, any alimony is considered a gift subject to taxation, while for opposite-sex couples it's tax-free. And when a spouse dies, the widow or widower is liable for inheritance taxes; heterosexual couples enjoy a marital deduction.
"That's where you could have savings in the hundreds of thousands, or millions," says Nanette Miller, who leads the non-traditional family practice at Marcum LLP, one of the nation's largest independent accounting firms.
Lawyers for House Republicans who defended the Defense of Marriage Act in lower courts that ruled against it say the law is needed to help preserve limited federal funds and to assure that benefits are distributed consistently among states.
"Because the terms 'marriage' and 'spouse' are used in numerous federal statutes, including those conferring federal benefits, the (lower court's) decision will have a sweeping impact," they argue in one of their Supreme Court briefs.
Nearly all of the issues faced by gay couples have been raised in the eight Defense of Marriage Act cases that the high court considered hearing.
Mary Bonauto, civil rights project director for Gay and Lesbian Advocates & Defenders, which had two cases under consideration, represents clients who were denied Social Security survivor benefits, family and medical leave benefits, veterans benefits, health coverage or the ability to file joint income tax returns.
"These federal benefits touch on virtually every aspect of life and death," Bonauto says. "It really is about that fundamental promise to all Americans of equal protection of the laws."
The denial of benefits has an outsized impact on the children of gay and lesbian couples, says Jennifer Chrisler, executive director of the Family Equality Council. They are twice as likely to live in poverty as those in heterosexual married households, she says.
When it comes to federal safety-net programs, such as early childhood education, food stamps, Social Security and disability benefits, eligibility depends on "how their relationship is defined," Chrisler says.