ROBERT SIEGEL, HOST:
So, what will change for same-sex couples now that DOMA has been overturned? Brian Moulton has been researching that question. He's legal director for Human Rights Campaign, the big gay, lesbian and transgender civil rights organization. Brian Moulton, welcome to the program.
BRIAN MOULTON: Thank you.
SIEGEL: And let's start with some obvious areas. Can same-sex married couples now file joint federal income taxes and be treated as widows or widowers by the IRS no matter where they live?
MOULTON: So, you know, the decision, first of all, has to get finalized. We've got about 25 days for that. But after that, we believe that the IRS should consider married same-sex couples in marriage equality states - in those now 12, and soon 13 with California, states, plus D.C. - that have marriage. They should be treated exactly the same as different-sex married couples are right now. The question is tougher when it comes to couples who are married, have a valid marriage license but now live in a state that doesn't recognize their marriage. For them, the IRS historically has often looked to the state that you live in to determine if you have a valid marriage for tax purposes but we think they have a lot of flexibility to work with those rules. And we're going to be urging them to make sure that those couples, wherever they live, are treated as what they are, which is lawfully married.
SIEGEL: Let's move from the IRS to the Social Security Administration. Will same-sex couples now enjoy spousal benefits from Social Security, regardless of where they live?
MOULTON: You know, again, the challenge is always for those married same-sex couples who don't live in marriage equality states right now. And in Social Security, there's actually a provision of the law, in the Social Security law itself, that says the agency looks to the state where someone is domiciled, where they reside. And so for those couples, we think, without further action from Social Security or even from Congress, that they will not be equally recognized for Social Security purposes.
SIEGEL: Similarly, if a couple lives in a state where same-sex marriage is not legal, can one spouse invoke federal law to be assured of coverage on his or her spouse's employer-provided health insurance or some other benefit?
MOULTON: Right, right. So, we do think that, you know, for purposes of ERISA, the law that governs private employer health insurance and retirement plans that, you know, in those cases they will be recognizing valid marriages regardless of where they live. But there are some questions that agencies like the Department of Labor are going to have to answer for us.
SIEGEL: If a member of the armed forces marries a partner of the same sex, would his or her spouse be guaranteed the same treatment as a heterosexual spouse?
MOULTON: In fact, well, we believe certainly the Defense Department can and should extend all of those spousal benefits. Actually, one of the first agencies to have tackled this issue already today, Secretary Hagel, the secretary of Defense, has already stated that married service members will be treated equally as their heterosexual counterparts.
SIEGEL: You're saying regardless of where they're based, what state they...
MOULTON: That's right, yes.
SIEGEL: Another area of policy in which marital status makes a difference is immigration and naturalization. Let's say a couple - one American and one not American - are married in a foreign country that has same-sex marriage, and they then go live in a state that has same-sex marriage. Does the non-citizen get spousal treatment in, say, applying for a green card?
MOULTON: So, historically, and under their rules and regulations, the immigration agencies have looked to the place of celebration, the place where the marriage took place to determine if that's a valid marriage for immigration purposes. We would expect they will apply that approach equally to married same-sex couples wherever they may reside. But, again, that's something we'll be, you know, looking to the agency to give us further information about what they're going to do.
SIEGEL: By the way, in terms of the IRS or the Social Security Administration, could couples make a claim for retroactivity, that they should have been allowed to file this way last year or the year before - they were legally married, or was DOMA in effect and therefore it covers, say, this year's taxes if you just filed them two months ago?
MOULTON: Well, you know, certainly the IRS allows individuals to amend their tax returns for the past three tax years. And I would certainly hope that same-sex couples would be able to avail themselves of that opportunity. Again, something the IRS will certainly need to provide guidance on. And certainly couples will want to talk to, you know, tax professionals and legal experts about their individual situations.
SIEGEL: From what you're saying, this could be the tax preparer's beneficent act of 2013 that the Supreme Court has just announced. A lot of the new returns being filed.
MOULTON: Well, certainly, you know, tax repairers have been struggling to help same-sex couples, you know, even, you know, before today's decision to make sure that they are doing everything they're supposed to be doing. And I think that, you know, they will need to continue to help guide people through what is already a complex process for many individuals, regardless of sexual orientation.
SIEGEL: Well, Brian Moulton, legal director for Human Rights Campaign, thanks a lot for talking with us today.
MOULTON: Thank you.
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