CHICAGO When President Obama embraced same-sex marriage last week, he tried to frame it as an issue for the states to resolve. But federal laws and policies are very much front and center in the battle for a level financial playing field for lesbian, gay, bisexual and transgender (LGBT) Americans - especially seniors. And the Obama administration is taking a more active role in that battle than the president let on in his historic interview.
One of the key pocketbook issues is that it is impossible for LGBT couples to access the valuable spousal, survivor and death benefits from Social Security, although they pay the same FICA taxes as heterosexual workers, and are nearly twice as likely to live in poverty than heterosexual seniors. Average Social Security benefits are 32 percent lower for LGBT couples than for heterosexual couples, according to The Williams Institute, a think tank focused on sexual orientation and gender identity law and public policy at the UCLA School of Law.
The Social Security problems center on the federal Defense of Marriage Act (DOMA), which defines marriage as existing only between a man and a woman. Under Social Security's rules, spouses can receive the greater of their own benefit or half of a spouse's benefit. And a surviving spouse can receive the greater of his or her own benefit, or 100 percent of the spouse's benefit.
No states had enacted same-sex marriage laws before the passage of the DOMA during the Clinton years. Now, in a state such as Massachusetts, it's possible to have two couples - one straight, one gay - both with the same marriage papers. One couple can access Social Security's spousal and survivor benefits, but the other can't.
The Obama administration views that as a clear violation of the Constitution's equal protection clause, and has said it won't defend DOMA, which is facing several court challenges and may find its way to the U.S. Supreme Court.
On another front, a move is afoot to change the Social Security Act itself. A coalition of advocacy groups has proposed the Social Security Equality Act, which would let couples in relationships recognized by their state of residence to receive the same Social Security benefits as heterosexual married couples. The bill, sponsored by Rep. Linda Sanchez, a Democrat from California, would recognize domestic partnership, civil union and marriage.
Last week, the National Committee to Protect Social Security and Medicare proposed removing gender-specific definitions of the words "husband" and "wife" in the Act as part of a broader proposal to enhance and reform Social Security benefits.
MEDICARE AND MEDICAID RULES
Same-sex couples also face financial trouble with their healthcare when they are seniors. Eligibility for Medicare is based on the number of quarters in which you have paid payroll taxes into the system. At age 65, anyone with a work history of at least 40 quarters can enroll for Medicare Part A (hospitalization) without paying a premium. Everyone pays a premium for Part B (doctors' visits), Part D (prescription drugs) or a supplemental medical policy. But access to the entire program is predicated on Part A enrollment.
You can also enroll without paying a premium if a spouse qualifies.
But DOMA means that a legally married LGBT same-sex spouse lacking those 40 quarters must take the other route into Medicare - buying into the system by paying a hefty Part A premium out of pocket. This year, the monthly Part A premium is $451 for those with less than 30 quarters in the system.
The problems extend to access to social services, nutrition, housing and nursing home care. LGBT seniors are twice as likely to be single and up to four times more likely to be without children than their heterosexual counterparts, according to the AARP Public Policy Institute.
"There are issues around caregiving and social isolation," says Aaron Tax, director of federal government relations for Services and Advocacy for Gay, Lesbian, Bisexual & Transgender Elders, also known as SAGE. "Pile onto that their lower incomes, benefits discrimination and higher poverty rates, poor health and access to health care."
Tax notes that the Obama administration has been making changes in a range of policy areas without much fanfare.
For example, the U.S. Department of Housing and Urban Development announced new rules this year banning LGBT discrimination in federal housing programs. The Obama administration also has taken a number of steps to address inequalities in healthcare.
In that same vein, Medicaid has rules aimed at preventing healthy spouses from having to impoverish themselves in order for the ill spouse to qualify for Medicaid; the U.S. Department of Health and Human Services has issued guidelines to states on how the spousal protections can be extended to LGBT couples.
A key goal for SAGE and other advocates is to gain recognition for LGBT issues in the Older Americans Act (OAA), which has been up for reauthorization by Congress since last year, and is the main vehicle for funding nutrition and social services for seniors.
The goal is to add language compelling local social services agencies receiving federal funding under OAA to reach out to LGBT seniors to raise awareness about available services and create a welcoming atmosphere for them.
Meanwhile, the White House sponsored a first-ever LGBT Conference on Aging earlier this month in Miami, which addressed issues in healthcare, housing and economic security issues.
"The conference had a lot of symbolic value," Tax says. "It really was a sign of the times that this population has unique needs that need to be met, especially as the number of LGBT elders increases."
See related column: Same-sex couple will save if DOMA is struck down (link.reuters.com/fyz28s)
(The writer is a Reuters columnist. The opinions expressed are his own. For more from Mark Miller, see link.reuters.com/qyk97s)
(Follow us @ReutersMoney or here. Editing by Beth Pinsker Gladstone and Jan Paschal)