We’re Federally Recognized Now

Attorney Christopher Krimmer explains the hundreds of marriage rights now available to same-sex spouses who live in Wisconsin.

Since 2004, when Massachusetts became the first state to grant same-sex marriages, Wisconsin couples have traveled out of state to wed. Now that 14 states, the District of Columbia, and Canada all permit same-sex marriages, Wisconsin same-sex couples marrying out of state has become even more commonplace. Although these weddings meant a great deal to the two spouses on a personal level, the couple understood that once they returned to Wisconsin, the legal impact of the marriage was ceremonial only. The hundreds of state rights and 1,106 federal benefits associated with marriage were not available to them. That all changed this past summer when the U.S. Supreme Court issued its decision in the Defense of Marriage Act case.

The Supreme Court invalidated Section 3 of DOMA, which had prohibited the federal government from recognizing same-sex marriages. This meant that even though a state may have decided to grant same-sex marriages, the federal government would ignore that marriage in granting the 1,106 federal benefits, rights, and privileges associated with marriage. The Supreme Court held that this section of DOMA was unconstitutional on equal protection, due process, and “states’ rights” grounds.

As a direct result of the DOMA decision, couples who wed and resided in a “recognition state” (a state that recognizes same-sex marriages) were granted all of the state and federal rights of marriage.

The trickier part of the DOMA decision was how to address same-sex marriages that occurred in a recognition state, but the couple reside in one of the other 37 states, including Wisconsin, that prohibit same-sex marriage. Clearly, they would not be entitled to the state marriage rights since those rights are governed by state law. But what about the federal benefits of marriage? Would those rights become available to couples who live in a non-recognition state such as Wisconsin?

The answer hinges on the understanding of the “place of residence” and “place of celebration” rules. The best way to understand the distinction is to consider that most federal rights are tied to different federal programs or agencies. The Social Security Administration, the IRS, the Department of Labor, and the Department of Defense are only a few. Each program determines whether you are entitled to marriage benefits by one of two standards. Some programs will grant the benefits if your marriage is valid in the state in which you reside. This is the “place of residence” rule. Since Wisconsin doesn’t recognize same-sex marriage, the federal programs that rely on the “place of residence” rule are not available to married same-sex couples.

Other federal programs have adopted a different rule. These other programs will grant benefits if your marriage is valid in the state in which you married. This is the “place of celebration” rule. So, if you married in one of the 14 states, D.C., Canada, and other countries that recognize same-sex marriage, you would be entitled to these federal benefits even though you live in Wisconsin.

President Obama responded to the DOMA decision by bringing together a task force of the heads of the various federal agencies. The objective of the task force was to “swiftly implement” the DOMA decision and to provide more uniformity among the agencies when it comes to same-sex marriage. It seems clear that this uniformity is to adopt the “place of celebration” rule among as many federal agencies as possible. Currently, the Department of Labor, the IRS, Department of Defense, Office of Personnel Management, and the U.S. Citizenship and Immigration Services have all adopted the “place of celebration” rule. This means that there are hundreds of federal benefits now available to same-sex couples in Wisconsin who have married. It also means there are federal obligations and disadvantages that couples now have as married couples as well. For example, a Wisconsin same-sex couple who married out of state now must now file a joint federal tax return or a “married filing separately.” An individual federal tax return is no longer an option for them. This may or may not be a benefit for them depending on the income of each spouse.

As of the submission of this article, the federal programs that still recognize the “place of residence” rule include the Social Security Administration, the Department of Veterans Affairs, Medicaid, and Medicare. This seems to be changing weekly, so you will want to be diligent in staying informed of any new developments.

For up-to-date information on the various agencies and whether they adopt the “place of celebration” rule or “place of residence” rule, you can visit Balisle & Roberson, S.C.’s website at b-rlaw.com and click on “Non-Traditional Families.” This will also provide a summary of the most significant federal rights now available to same-sex married couples in the state.

A word of caution: Before jumping in the car to wed in Minnesota or Iowa, the couple must consider our state’s marriage evasion statute, which makes it a crime, punishable by a fine not exceeding $10,000 and/or 9 months in jail, to leave the state to enter into a marriage that is void under our state laws. Since we have a constitutional amendment prohibiting the granting of same-sex marriages, an argument could be made that the evasion statute applies to same-sex marriages. The marriage evasion statute is an archaic law enacted in 1915 with the intention of preventing interracial marriages, but it hasn’t been repealed and remains “on the books.” Although no gay or lesbian couple has been prosecuted under the statute, it is still a real consideration for the couple contemplating marriage outside of the state.

Christopher Krimmer teaches Sexual Orientation and the Law at Marquette Law School. His law practice focuses on nontraditional-family protections (b-rlaw.com).