Supreme Court decision triggers massive overhaul of regulations

The Supreme Court’s decision to overturn the ban on federal benefits for gay couples is sure to trigger a mammoth effort to change hundreds of regulations and laws across the breadth of government.

The scope of the high court’s ruling goes far beyond Social Security checks and joint tax returns. Its implications extend to everything from policies at the Pentagon to the immigration reform bill now being debated in Congress.

Within hours of the ruling, President Obama directed Attorney General Eric Holder and other members of his Cabinet to begin poring over relevant federal statutes and regulations that might need to be adjusted in light of the 5-4 decision to strike down a key provision of the Defense of Marriage Act (DOMA).

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In the court’s view, the trove of potentially applicable regulations is vast.

“Congress has enacted discrete statutes to regulate the meaning of marriage in order to further federal policy, but DOMA, with a directive applicable to over 1,000 federal statutes and the whole realm of federal regulations, has a far greater reach,” Justice Anthony Kennedy wrote in the majority opinion.

Agencies across the government will need to reevaluate how they dole out benefits and collect money from Americans whose marital status, in the eyes of the federal government, has changed in the blink of an eye.

For instance, while the estimated 70,000 gay members of the military have been able to express their sexuality since the repeal of “Don’t ask, don’t tell,” their same-sex spouses have been unable to obtain housing, education and other benefits.

“This knocking-out of DOMA should change all that,” said Denny Meyer, a spokesman with American Veterans for Equal Rights, an organization that advocates for LGBT service members and veterans. “How quickly they’ll react, who knows? But now there should be no blockage to benefits for active duty.”

Defense Secretary Chuck Hagel pledged to change the department’s policy “immediately.”

“The Department of Defense intends to make the same benefits available to all military spouses — regardless of sexual orientation — as soon as possible,” he said in a statement. “That is now the law and it is the right thing to do.”

The Department of Veterans Affairs (VA) might not move as quickly, Meyer predicted.

“It’s going to happen more slowly for the VA than for active duty people serving the Pentagon,” he said. “It’s an enormous bureaucracy and it just works really slowly.”

For gay-rights advocates, the ruling marks the beginning of an effort to pressure agencies to interpret the ruling broadly and incorporate new language into the hundreds of regulations that currently define marriage as between a man and woman.

The full-court press is already underway at the Human Rights Campaign.

“With the Defense of Marriage Act gone, the organization is pushing hard to ensure that the Obama administration cuts through regulatory clutter and delivers the greatest number of benefits to the greatest amount of people,” the group declared on its website.

Same-sex couples in states where gay marriage is legal will soon have access to federal benefits, but it is unclear how the ruling would affect those couples in states where their marriage is not recognized.

"It’s obvious that New York same-sex spouses living in New York count, but what about New York same-sex spouses living in Florida or living in Texas or any of the 38 states that define marriage as between one man and one woman, and seem to be legally authorized to continue to do that?” said Todd Solomon, a partner in the Chicago office of the McDermott Will & Emery law firm.

“These federal agencies are going to have to either take a position or issue guidance saying what state matters. Is it state of ceremony or is it state of residence?” he said.

The ruling sets the stage for a highly contentious and complicated regulatory process running the gamut from tax filings to housing issues.

Though the case before the court, United States v. Windsor, concerned the application of the estate tax, Kennedy noted that the law “is more than a simple determination of what should or should not be allowed as an estate tax refund. Among the over 1,000 statutes and numerous federal regulations that DOMA controls are laws pertaining to Social Security, housing, taxes, criminal sanctions, copyright, and veterans’ benefits.”

“There’s going to be a lot of work coming out of this because there’s just so many different rules at play and so many interpretive questions that didn’t exist yesterday,” Solomon said. “It’s a big win for [same-sex couples] but it definitely creates more questions than it solves.”

In some instances, updating policies in accordance with the law could be as simple as issuing informal agency guidance to ensure gay married couples are treated the same as heterosexuals, said Brian Moulton, legal director for the Human Rights Campaign.

In others, agencies would likely have to go through a formal rulemaking process. In others still, Congress might have to pass legislation to change the language of various statutes.

A full repeal of the 1996 Defense of Marriage Act would simplify the labyrinthine process, said Sen. Dianne Feinstein (D-Calif.), who announced legislation to do just that.

“Because of inequities in the administration of more than 1,100 federal laws affected by DOMA, it is still necessary to introduce legislation to repeal DOMA and strike this law once and for all,” she said.

The bill has 39 co-sponsors, Feinstein said.

The court’s decision will also affect people who petition to have their foreign same-sex spouse immigrate to the United States.

That system already exists for heterosexual couples, so it should not be too difficult to adapt it for same-sex marriages, according to Clarissa Martínez-De-Castro, the director of civic engagement and immigration at the National Council of La Raza.

“It’s new ground, it has to be broken — but it’s not a completely new process,” she said.

Prior to the Supreme Court decision, Sen. Patrick Leahy (D-Vt.) had been pushing an amendment to the Senate immigration bill that would have enabled any U.S. citizen in a same-sex marriage to sponsor his or her spouse for a green card that could lead, in due course, to American citizenship.

In a statement praising the court’s decision, Leahy announced he would no longer offer the amendment because the point had become moot.

“It appears that the anti-discrimination principle that I have long advocated will apply to our immigration laws and binational couples can now be united under the law,” Leahy said. “As a result of this welcome decision, I will not be seeking a floor vote on my amendment.”

This story was posted at 12:56 p.m. and updated at 6:03 p.m. and 8:28 p.m.