Uncertainty remains about benefits for married same-sex couples in Kentucky

raretakis@herald-leader.comJuly 10, 2013 

Uncertainty remains about which federal benefits married couples of the same sex can claim in Kentucky two weeks after the U.S. Supreme Court struck down a key portion of the federal Defense of Marriage Act.

"The mechanics of how that is going to happen is largely up in the air at this point," said Amber Duke, spokeswoman for the American Civil Liberties Union of Kentucky.

The Supreme Court's June 26 ruling declared unconstitutional a provision that prohibited same-sex married couples from collecting federal benefits. In the 13 states and the District of Columbia where gay marriage is recognized, couples have already begun claiming some of the more than 1,100 federal benefits available to married people.

In Kentucky and other states where same-sex marriage is illegal, it remains unclear how many benefits the court's ruling will make available to same-sex couples who were legally married in another state.

The court's ruling does not affect Kentucky law because states are not obligated to recognize same-sex marriages performed in other states. A 2004 amendment to the Kentucky Constitution defines marriage as being exclusively between one man and one woman.

"The decision doesn't tell us how the federal government will handle federally recognized marital rights in states that don't permit same-sex marriage," said Nicole Huberfeld, a law professor at the University of Kentucky.

Still, same-sex couples in the state can begin claiming at least a few federal benefits now, said Ross Ewing, a family law attorney in Lexington and volunteer for Lambda Legal, a nonprofit organization that advocates for lesbian, gay, bisexual, and transgender people.

"Others, like Social Security survivor benefits, will require major changes to legislation or extensive litigation," Ewing said.

Agencies also need time to change forms and procedures to include same-sex couples, as well as train personnel. At the moment, federal agencies determine marriage benefits based on differing criteria. For example, some rely on marriage laws in the state where the marriage took place, and others rely on marriage laws where the couple lives.

"That's the crux of delay for some federal benefits," Ewing said.

Federal immigration officials generally look to the state where a marriage took place when determining whether the marriage is valid, according to the Department of Homeland Security. However, the agency cautions there are exceptions to that rule, and the state of residence could also be a determining factor.

Other agencies, such as the Internal Revenue Service, haven't decided how they plan to define marriage. Ewing said he expects the IRS to make an announcement before the end of the year so that same-sex couples know how to file their tax returns.

Until the government sets one uniform policy on the definition of marriage, Huberfeld cautioned there is no guarantee that same-sex spouses in Kentucky will receive all federal benefits.

However, Ewing said three groups in Kentucky benefited immediately from the court's decision: federal employees, military couples and binational couples.

For federal employees, health benefits are now available to their same-sex spouses and their children, regardless of where they live.

The Pentagon also announced after the Supreme Court's decision that all military spouses would be eligible for benefits, regardless of sexual orientation. Benefits range from family allowances to allowing spouses to live on a military base, Ewing said.

Bob Jenkins, director of public affairs at Fort Campbell, said base officials are working to implement the changes.

Federal immigration officials took a similar stance, saying U.S. Citizenship and Immigration Services would review visa petitions for same-sex spouses in the same manner as those filed by opposite-sex spouses.

Already, these changes have affected Lexington couple Joy Hayes and Lujza Nehrebeczky, who were married in 2011 in Connecticut.

Originally from Hungary, Nehrebeczky has been in the United States for the past 10 years on a student visa. She couldn't obtain a permanent resident visa through Hayes because the government didn't recognize their marriage.

"It put significant restrictions on our lives," Hayes said of Nehrebeczky's immigration status. "We couldn't go on and do the things that normal couples want to do."

To help stay together, the couple spent tens of thousands of dollars in tuition, allowing Nehrebeczky to maintain a student visa.

The couple applied for Nehrebeczky's green card the day of the court decision, an application that has taken almost six months to prepare.

"It's just a huge relief," Nehrebeczky said. "We've had so much tension and anxiety over this, and it just melted away."

Rachel Aretakis: (859) 231-3197. Twitter: @heraldleader

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