The following is not legal advice. It is just crazy cat lady ramblings except I own no cats and I'm no lady.
I can't and won't provide an answer to your specific hypotheticals and I'm certain your friends know they will want to invest in legal counsel before making any moves, sudden or otherwise.
But I do have some general thoughts to share. First, as in any battle, it is important to distinguish the friendlies from the neutrals and the enemies. My surmise is that the Feds, under the current administration, will take an expansive view of these rights and benefits. That is reflected in the fact that the Administration did not oppose Plaintiff Edie Windsor's efforts to avoid the enormous estate tax she incurred because DOMA prevented Federal recognition of her marriage, which was legal in the State of New York. It is also reflected as recently as today on the website of the Office of Personnel Management, which states as follows:
"Today’s historic decision by the Supreme Court that the Defense of Marriage Act is unconstitutional is a much welcome development in the continuing quest to ensure equal treatment under the law to all Americans. For the federal government as an employer, it will impact benefits for our married gay and lesbian employees, annuitants, and their families."
“In the coming days, OPM will be working closely with the Department of Justice and other agencies to provide additional guidance for federal human resources professionals, benefits officers, and our employees and annuitants. While we recognize that our married gay and lesbian employees have already waited too long for this day, we ask for their continued patience as we take the steps necessary to review the Supreme Court’s decision and implement it. As soon as we have updates to share, they will be posted on our website.”
The Federal Government can be counted on to fully implement Windsor (the case that struck down one part of DOMA). It is constrained by the law but will, I think, err on the side of extending benefits (and imposing responsibilities, where those exist) so as to provide equality to legally married same sex couples as mandated by
Windsor.
My further surmise is that these rights and benefits (and don't forget the responsibilities) will depend, primarily, on whether the couple is legally married under the laws of the state in which they were married.
Section 2 of the Defense of Marriage Act still stands and that section allows states to decline to recognize same sex marriages legally performed elsewhere. However, I would argue that the question is not whether
Hawaii will recognize the marriage (it won't under current law) but whether the
Federal Government will recognize the marriage. I believe the answer to that question in many, if not all, instances, is that the Federal Government will recognize a marriage that was legally performed under the laws of a given state. And once recognized, it will not withdraw that recognition simply because the parties relocated.
As the opinion notes there are over a thousand rights and responsibilities connected with marriage in Federal law (I pity the intern who did the counting, if ever anyone actually attempted to count these). It is possible that some of these benefits are residence-dependent. I don't know, and no one knows the answers, at this point. If there are a thousand laws, there will be a thousand questions. There are undoubtedly squadrons of attorneys in the District of Columbia examining these questions at the moment.
But the opinion in
Windsor was quite broadly worded and said, in essence to the Federal Government, "Thou shalt not discriminate against same sex couples who are legally married".
And, I would argue, a marriage that is entered into lawfully in Washington State is not made illegal simply because the married couple moves to Hawaii. Hawaii, at present, doesn't have to recognize the marriage, but that does not render it
illegal. It is important not to equate "unrecognized" (as in
I can't see you) with "illegal". While in Hawaii, your friends could truthfully say "We are legally married but our marriage is not recognized by the State of Hawaii".
I can see a host of problems in the interstices between the states and the feds. And, if the couple was moving to a state with an antipathy toward same sex marriage (hostility expressed throughout that state's government), it would be very easy for a hostile state (e.g., Mississippi), or a person working for, say, the Veteran's Administration in such a state, to create problems that would work themselves through the courts or through administrative bodies.
But I know what my argument would be: State, we aren't looking for your recognition. We are asking the Feds to recognize a marriage that was legal in the state (or D.C.) where it was performed. And under the Supremacy Clause of the Constitution, a given state, generally speaking, does not get to tell the Federal Government who qualifies for Federal benefits. I am not suggesting this is an easy question and that there is no opposite argument. But that is what I would argue: Hawaii -- you can pretend we aren't married, but we are married under the laws of the State of California (or Washington, or Iowa....) and we are just asking the Federal Government to recognize us.
A problem could arise if a Federal law or regulation
defers to a state with respect to the eligibility for a given benefit. There will be complications --enormous ones and not all of them can be foreseen at this time as none of these laws were drafted with
Windsor in mind. An example of where Federal law refers to state law for definitional purposes would be Social Security law which says, in essence, that you are a spouse if you were considered married under the law of the state where the "insured worker" was domiciled when you filed for benefits. Of course, a provision such as the one just cited that shuts out legally married same sex couples based on the state in which they are domiciled when they apply for benefits, may run afoul of
Windsor. But who wants to litigate? It is probably highly advisable when applying for certain Federal benefits, to be in a state that recognizes same sex marriage when you do so. It is probably advisable as well to consider not just immediate benefits but to anticipate future needs.
The above are my thoughts alone, but Lambda Legal is and has been an excellent resource for information on domestic partnerships and the marital rights and responsibilities as they pertain to same sex couples. They are not poised to answer all questions yet either. Link below. They could use a donation.
It is in our mutual best interest to work together to ensure that the spirit of aloha is reflected in the laws of the State of Hawaii. We should answer our own difficult questions by ensuring they don't need to be asked in the first place. [
]
http://www.lambdalegal.org/publications/after-doma
