06-27-2013, 05:47 PM
Absolutely right, Midnight Rambler. I agree that there may be many laws that are domiciliary dependent in defining "spouse", essentially letting the state determine whether a party is a spouse or not, and Social Security survivor benefits is a good example. I edited my response to address that just prior to reading your comment. So, I don't think there is an omnibus answer, as yet, to the entitlement of all rights and privileges that the Federal government confers on a spouse. There is "cut the Gordian knot" argument that Windsor eliminates any Federal law or restriction that purports to give disparate treatment to legally married same sex couples, including a law that would deprive a legally married spouse of the same sex who is deprived of benefits because the insured spouse was domiciled in a state that does not recognize their marriage when the other spouse applied for benefits. But we don't know yet and there could be resistance on each and every one of these. I am quite certain Congress will not correct any problems as there is no political will to do so.
An unpleasant, but conceivable result would be for a party to be entitled to certain benefits, such as pension and health, but to be deprived of others, such as Social Security survivor benefits, because it is made dependent on the law of a state, such as Hawaii, that does not define a spouse as a party to a same sex marriage.
A more sensible result, of course, would be to deem Windsor to nullify any Federal law that purports to impose an unfair burden on same sex couples, including any Federal law that hands the fates of such couples to a state that refuses to recognize them, such as Hawaii.
Where Federal law occupies a given field, such as air transportation, I think the result is easier to guess. There can be no unequal Federal treatment of spouses to a same sex marriage.
An unpleasant, but conceivable result would be for a party to be entitled to certain benefits, such as pension and health, but to be deprived of others, such as Social Security survivor benefits, because it is made dependent on the law of a state, such as Hawaii, that does not define a spouse as a party to a same sex marriage.
A more sensible result, of course, would be to deem Windsor to nullify any Federal law that purports to impose an unfair burden on same sex couples, including any Federal law that hands the fates of such couples to a state that refuses to recognize them, such as Hawaii.
Where Federal law occupies a given field, such as air transportation, I think the result is easier to guess. There can be no unequal Federal treatment of spouses to a same sex marriage.