Thursday | July 27, 2017
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Obama can give legal clarity to same-sex marriage

After the jubilation comes the complications. This week’s Supreme Court decision granting equal rights to same-sex married couples is a landmark for gay and civil rights. It also raises complicated practical questions — many of which President Barack Obama could, with the stroke of a pen, sweep away.

By law, the federal government now must treat same-sex couples the same way as heterosexual ones when it comes to health care, retirement, inheritance, family leave and dozens of other benefits. Nonworking spouses in same-sex marriages will be eligible for Medicare benefits, for example. Many same-gender spouses will be able to take up to 12 months of unpaid leave to care for a sick husband or wife under the Family & Medical Leave Act. They will no longer have to pay taxes to add a nonworking spouse to an employer-provided health plan.

In practice, though, it’s not so simple. Since the court’s decision specifically applies only to “lawful marriages,” it isn’t clear if same-sex couples can claim any of these benefits if they live in one of the 38 states that don’t legally recognize their marriage. The questions, to borrow a phrase from Justice Anthony Kennedy’s majority opinion, range from the mundane to the profound.

Obama is asking for a “little patience” from the tens of thousands of gay couples trying to figure out how they may be affected legally and financially. Careful consideration is important, especially with opponents of same-sex marriage already warning that they will sue if federal policies impose de facto same-sex marriage in states where voters have opposed it.

Obama has the power to cut through a lot of the legal underbrush. He already appears to be wrestling with the biggest issue of all: whether to grant benefits to married couples who live in states where same-sex marriage isn’t allowed. “It’s my personal belief,” Obama said, “if you’re married in Massachusetts and move someplace else, you’re still married.” He cautioned that he was speaking as the president and not as a lawyer, meaning that his counselors may have a different opinion.

They should take their cue from the Department of Defense, of all places. The Pentagon defines marriage based on “the place of celebration,” and not the place of residence. On the day of the court decision, Secretary of Defense Chuck Hagel said the department would as soon as possible extend benefits, including military health care and on-base housing, to military spouses in same-sex marriages.

An executive order from the president could instruct federal agencies — including the IRS, which defines marriage based on where couples live, not where they were married — to follow the Pentagon’s lead.

The 2010 Census shows there are more than 130,000 same-sex married couples in the U.S., with about two-thirds of them living in the 12 states (plus the District of Columbia) where their marriages are legally recognized.

With the court’s momentous decisions this week, it’s natural to expect that number to jump. After waiting this long for the right to be treated equally, same-sex couples shouldn’t face a lengthy legal limbo before they can reap the benefits.