36. Implications of DOMA and the Supreme Court Ruling on Same-Sex Marriage for Spousal Benefits

LGBT persons in the USA have long been viewed as undeserving of equal rights and recognition in same-sex marriages . The Defense of Marriage Act (DOMA) , a federal law that allows states to refuse to recognize same-sex marriage granted under laws of other states, was enacted in 1996. In 2013, Section 3 of DOMA was declared unconstitutional, in conjunction with other statutes that had barred same-sex couples from being legally recognized as spouses for purposes of federal laws, effectively barring lesbians and gay persons from receiving federal marriage benefits. The affirmation of the Supreme Court that DOMA is discriminatory was hailed as a major victory for LGBT persons. The US Supreme Court ruled in favor of same-sex marriage on June 24, 2015. Many supporters view same-sex marriage as the most pressing civil rights issue of this era.

The purpose of this chapter is to examine the implications of DOMA and the Supreme Court ruling on same-sex marriage pertaining to spousal benefits. The focus is on same-sex marriage, not necessarily civil unions or registered domestic partnerships. First, we will identify issues of concern emanating from both sides of the debate on gay marriage were presented to the Supreme Court. Second, implications after DOMA in regard to Medicaid and Medicare spousal protections; Supplemental Security Income (SSI) for the elderly, blind, and persons with disabilities; military and spousal benefits; immigration; and private employment issues and benefits are discussed. Implications for inheritance, power of attorney, and families of choice in hospital visitations and medical decision-making are dispersed throughout the discussion. The information presented in this chapter is not intended to serve as legal advice or as guidance in decision-making about spousal benefits, but rather, we present information to help guide thinking and actions of service professionals. The terms same-sex marriage and gay marriage are used interchangeably throughout the chapter.

Historically, lesbians and gay persons have been deemed as different from other groups of people and contextualized only by their sexual orientation. LGBT persons have been stereotyped based on their relationships, type of work, athleticism, appearance, and a host of other characteristics. Thus, LGBT persons, especially older lesbians and gay men, have lived a substantial part of their lives being denied equal protection under the law in the areas of a non-discriminatory workplace, health and social services, housing, social activities, stalking, financial security, and dating violence and marriage. The consequences of exposure to lifetime experiences of de facto legally sanctioned discrimination and victimization have thwarted the quality of life and contributed to chronic stressors and psychological distress for many LGBT persons.

After the court ruled that Section 3 of DOMA was unconstitutional, courts across the nation, with the exception of the Cincinnati Appeals Court, have struck down a series of state prohibitions on same-sex marriage , many of them passed by voters in referendums. In fact, many of those court decisions compared the prohibitions to the ones on interracial marriage that the Supreme Court struck down in 1967 in Loving v. Virginia (Barnes 2015). To date, 37 states and the District of Columbia have legalized gay marriage or are poised to do so. Meanwhile, 13 states have constitutional amendments banning gay marriage (Pew Research Center 2015). In the DOMA case, USA v. Windsor, the majority decision written by Justice Anthony Kennedy stated, “the federal government could not refuse to recognize or provide benefits to people in same-sex marriages that were conducted in states where they were legal.” In his opinion, from a federalist perspective, Kennedy wrote that withholding federal recognition of same-sex married couples “places them in an unstable position of being in second-tier marriages” and “demeans the couple, whose moral and sexual choices the Constitution protects … and whose relationship the state has sought to dignify.” Moreover, Kennedy wrote that allowed same-sex marriages “conferred upon them a dignity and status of immense import.” Further, Kennedy asserted that DOMA was written to convey moral disapproval of homosexuality and “a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states” (Gay & Lesbian Advocates & Defenders [GLAAD] 2015) (see Table 36.1 for a list of consenting and dissenting justices). Essentially, the repeal of Section 3 of DOMA expanded protections for legally married same-sex couples, granting them the same benefits received by opposite-sex married couples. Dozens of lower court judges interpreted Kennedy’s opinion to mean that states’ bans violate constitutional rights as well (GLAAD 2015).

A fact sheer series produced by the Human Rights Campaign (n.d.) produced the fact sheets series, After DOMA: What it Means for You, and begins with the following response:

The Supreme Court victory in USA v. Windsor striking down the discriminatory federal Defense of marriage Act (DOMA) affirms that all loving and committed couples who are married deserve equal legal respect and treatment from the federal government. The demise of DOMA marks a turning point in how the US government treats the relationships of married same-sex couples for federal programs that are linked to being married. At the same time, a turning point is part of a longer journey, not the end of the road. There is much work ahead before same-sex couples living across the nation can enjoy all the same protections as their different-sex counterparts (http://​www.​hrc.​org/​resources/​entry/​doma-get-the-facts).

Ilona Turner, legal director of the Transgender Law Center in San Francisco, indicated that marriage equality is an issue that affects many transgender persons in the USA. Turner added, “transgender people who are in marriages that may be legally considered same-sex can now be confident that their marriages will receive the full respect and recognition they are entitled to from the federal government” (http://​www.​transgenderlawcw​nter.​org/​archieves/​8493). For transgender persons, recognition of their marriage as valid depends on what state they live in, what medical procedures they have undergone, and whether or not an employer or insurer challenges their marriage’s validity (http://​www.​transgenderlawce​nter.​org/​archieves/​8493). Additional information about transgender persons and marriage law is available at www.​lambdalegal.​org/​know-your-rights/​transgender/​trans-marriage-law-faq (see Chap. 14 in this text for further discussion on transgender persons).

The process that determines the fate of the legal recognition of same-sex marriage is set in motion. The High Court heard oral arguments in April and rendered a decision on June 26, 2015. The Supreme Court decided that freedom to marry a person of one’s choice is a constitutional right. Prior to this ruling, both proponents and opponents of same-sex marriage agree that the Supreme Court has set the stage for a potentially historic ruling. According to Sherman (2015):

Proponents of same-sex marriage said they expect the high court to settle the matter once and for all with a decision that invalidates state provisions that define marriage as between a man and a woman. On the other side of the issue, advocates for traditional marriage want the court to let the political process play out, rather than have judges order states to allow same-sex couples to marry. (p. 1)

The ruling on the constitutionality of same-sex marriage marks the fourth time in 27 years that the court will be weighed in on major gay rights issues. Its first ruling occurred in 1986 when the court upheld Georgia’s anti-sodomy law. The most recent decision was in 2013 when it struck down part of DOMA in a decision that has paved the way for lower court rulings across the country in favor of same-sex marriage rights (Sherman).

The Supreme Court accepted cases from Michigan, Ohio, Kentucky, and Tennessee, in which restrictions about same-sex marriage were upheld by a Cincinnati, Ohio, Appeals Court on November of 2014. The parties on each side of the debate addressed two questions: (1) whether the Constitution requires states to issue marriage licenses to same-sex couples, and (2) whether states must recognize same-sex marriages performed in other states in which they are legal (Barnes 2015).

In 1996, President Clinton signed DOMA into law. Two significant parts of DOMA are of interest to our discussion in this chapter. The first is Section 3 of DOMA, which prevented the federal government from recognizing any marriages between gay or lesbian couples for the purpose of federal laws or programs, even if those couples were considered legally married by their home state. The second is that individual states do not have to recognize the relationships of gay and lesbian couples who were legally married in another state. Although the Supreme Court stuck down Section 3, it did not challenge Section 2 of DOMA, which declares that all states and territories have the right to deny recognition of any marriage of same-sex couples that originated in states where they are legally recognized (GLAAD 2015). The Supreme Court’s ruling in Windsor applies only to the federal government. See Policy Box 36.1.

Similar to the ongoing debate around same-sex marriage in the USA, Canada legalized same-sex marriage nationwide in 2005, making it the fourth county in the world and the first outside Europe to do so. In Halpern v. Canada, the Ontario Court of Appeal concluded that the traditional definition of marriage unconstitutionally violated persons’ Charter right to equality. The Civil Marriage Act provided a gender-neutral definition. The legal definition of marriage under the Act is, “Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.” In addition, the Act extended full legal benefits and obligations of marriage to same-sex couples as received by married different-sex couples under Canada’s business corporation and cooperative laws, and with regard to veterans’ benefits, divorce, and income taxes (http://​www.​mapleleafweb.​com/​features/​same-sex-marriage-canda#civil). Most legal benefits commonly associated with marriage had been extended to cohabitating same-sex couples since 1999 (http://​www.​nytimes.​com/​2005/​06/​29/​world/​americas/​29iht-web.​0629canada.​html?​_​r=​0).

The repeal of DOMA has substantial implications for families concerning a number of different federal rights that provide necessary marital benefits. Several marital benefits now granted to same-sex couples in legal marriages include social security benefits, multiple tax categories, military family benefits, healthcare benefits, political contribution laws, rights to creative and intellectual property, and hospital visitation and decision-making rights. GLAAD (2015) noted that couples married in a state where marriage equality is legal, but who are living in a state where it is not may have a more difficult time receiving benefits. In addition, the federal government’s recognition of benefits under DOMA will allow binational couples to sponsor foreign-born spouses for US residency. For example, individuals who are legally married have begun to receive green cards following the High Court decision on DOMA (GLAAD).

In the USA, marriage confers 1138 rights, protections, and benefits in federal law that both are legal and practical (Human Rights Campaign n.d.). Generally, society considers that the spouse is the most privileged party, an important factor in making medical decisions or receiving benefits on behalf of a spouse, or executing rights that would otherwise require a power of attorney or similar legal document. Marriage also gives the right to sue on behalf of a spouse (http://​www.​myfamilylaw.​com/​library/​legal-rights-and-benefits-of-marriage/​?​more=​yes). Regardless of age, those rights are conferred upon different-sex married couples in the USA. With the repeal of DOMA, federal benefits emanating from federal law are extended to same-sex couples. Below, we discuss several key marital benefits now extended to same-sex couples. We stress that this information is not intended to be legal advice or legal opinion, nor is it inclusive of all aspects. Most of the information below is either summarized or verbatim from the Human Rights Campaign (n.d.) fact sheet series, After DOMA: What it Means for You.

Federal Taxes. The federal government has a growing list of Code provisions tied to marital status and the impact of marriage on personal taxes. It is important to understand that every couple’s situation is unique and may change from year to year. With the invalidation of DOMA , the following are a few tax issues that may affect married same-sex couples. For filing status (i.e., single, head of household, married filing jointly, married filing separately), only married couples can file as married, whether jointly or separately. Filing status is determined on the last day of the year. For example, persons who are married on the last day of the year are considered married for the entire year. It is believed that the Internal Revenue Service (IRS) will instruct married same-sex couples to file income taxes as married, whether jointly or separately. If the individual is considered married in his or her state of permanent residence, that practice seems to suggest that only people in states that license or recognize marriages of same-sex couples and in the D.C. can expect to be treated as married by the IRS. However, the IRS does not always follow this practice; for example, the IRS recognizes “common law” marriages for federal tax purposes no matter where a couple resides as long as their marriage was valid where entered (http://​hrc-assets.​s3-website-us-east-1.​amazonaws.​com/​files/​assets/​resources/​Post-DOMA_​FSS_​Federal-Taxes_​v3.​pdf).

Social Security. Although the Social Security Administration (SSA) has yet to issue specific guidance on eligibility for benefits for same-sex couples nationwide, including eligibility depending on whether persons live in a state that bars marriages, a state with some alternative status such as civil unions, domestic partnerships, or designated beneficiaries, or living in a marriage state, SSA should still accept an application for benefits, while these determinations are being made. Nevertheless, in 2013, the SSA announced that it was processing some retirement spousal claims for same-sex couples (http:///hrc-assets.s3-website-us-east-1.amizonaws.com/files/assets/resources/Post-DOMA_FSS_Federal_Social-Security_v3.pdf). Additional information from SSA about benefits for same-sex couples and family members is available at http://​ssa.​gov/​doma/​.

Supplemental Security Income (SSI). The SSI programs pay cash benefits to people who are at least age 65 and meet financial limits or have severe disabilities and very limited income and resources (www.​ssa.​gov/​pgm/​ssi.​htm). It is more difficult for a married couple living together to qualify for SSI than when not living together. A married couple (both age 65 years or older) living together who meets the Social Security Act disability standard must apply for SSI as a couple. For married couples living together, with only one spouse meeting the age of disability standard, the qualifying spouse must apply as an individual. However, the income and resources of the ineligible spouse will be considered (i.e., deemed) to constitute the income and resource of the spouse applying for SSI as stipulated by a formula set forth in SSI regulations. Marital status is based under the statute on “appropriate state law,” and regulations further specify that the law of the state where the couple principally lives (i.e., domicile) at the time of application should apply. Under additional statutory provisions, even if the marriage is not recognized by the state where the couple lives, the couple will nevertheless be considered married for SSI purposes if a spouse can inherit personal property from the other without a will under the state’s law as would a spouse (http://​hrc-assets.​s3-website-us-east-1.​amazonaws.​com/​files/​assets/​resources/​Post-DOMA_​SSI_​v2.​pdf).

A married same-sex couple living in a state that respects the marriage will be regarded as married for SSI purposes, and the income and resources of both spouses will be taken into account to determine SSI eligibility and benefits. It is uncertain what this means for married same-sex couples who live in a state that does not recognize their marriage. The couple would not be regarded as married under the law of their state of domicile. However, it is possible that the couple could be construed as “holding themselves out” as married to the community and hence subject to the rules for married couples for federal SSI purposes. A section of the Social Security Act provides that, even if there is no recognized marital relationship, if two individuals hold themselves out as “husband and wife” to the community in which they reside, they will be regarded as a married couple for SSI eligibility purposes. Efforts may be made in non-recognition states to apply this “holding out” provision to same-sex partners in evaluating eligibility for SSI (http://​hrc-assets.​s3-website-us-east-1.​amazonaws.​com/​files/​assets/​resources/​Post-DOMA_​ssI_​v2.​pdf).

Medicaid. Medicaid is a federal-state health insurance program targeted for very low-income people who meet certain guidelines. Medicaid also provides insurance coverage for long-term care for persons who qualify. Each state has it own Medicaid program that is partially funded by the federal government. Although there are some federal requirements that states must follow, each state has different rules about who qualifies for Medicaid and what is covered. The Affordable Care Act (ACA) made Medicaid available to all very low-income people regardless of whether they have a child, a disability, or are elderly; however, under the recent Supreme Court ruling about ACA, not every state has to expand Medicaid under the law. In states that choose not to expand Medicaid, the old eligibility rules will still apply. Many states that have marriage equality did not treat same-sex married couples as married for many Medicaid programs. Given that the Medicaid program is limited to very low-income people, who is considered to be a family member for the purposes of determining family income and assets impact eligibility for Medicaid (http://​hrc-assets.​s3-website-us-east-1.​amazonaws.​com/​files/​assets/​resources/​Post-DOMA_​MEDICAID_​v3.​pdf). Additional information is available at www.​helthcare.​gov or www.​medicaid.​gov.

Medicare Spousal Protections. Medicare is a federal health insurance program for adults aged 65 and older, as well as for certain younger people with disabilities. Medicare has four parts: (a) Part A, hospital insurance; (b) Part B, medical insurance; (c) Part C, Medicare Advantage Plans, which are private health plans that contract with Medicare to provide both Part A and Part B benefits; and (d) Part D, prescription drug coverage. For most people, becoming eligible for Medicare is as simple as turning 65 years old, but other aspects of the program, such as requirements and amounts of premiums, eligibility for certain types of plans, and timing of enrollment, may depend on work history, access to other health care, health status, and income. In several situations, having a spouse may alter the way benefits are accessed. Additional information is available at www.​medicare.​gov or www.​ssa.​gov/​pgm/​medicare.​htm.

Medicare defines the same definitions as Social Security. According to the Medicare guidelines, a person is a spouse if (a) he or she has a valid marriage under the law of the state where he or she lives at the time of filing for benefits, or (b) he or she has the same rights as a husband or wife for purposes of the distribution of intestate personal property under the laws of the state where he or she lives at the time of filing for benefits. This definition also applies to married same-sex couples who live in a state that recognizes their marriage. For married same-sex couples living in states that discriminate against their marriages, federal law likely prevents them from accessing spousal benefits. If a partner applied for benefits while living in a state that recognized the marriage or allowed the spouse to inherit without a will as a spouse and only moved after the commencement of receiving benefits, he or she should continue receiving Medicare benefits in the new home state, regardless of the relationship recognition laws in that state because benefits are determined by the marital status in the state in which application was made for benefits (http://​hrc-assets.​s3-website-us-east-1.​amazonaws.​com/​files/​assets/​resources/​Post-DOMA_​Medicare_​v3.​pdf).

Military Spousal Benefits. For members who are in the active military, reserves, and National Guards, by statute a spouse is a husband or wife as the case may be. In 2013, the Secretary of Defense wrote in a memo that:

In the event that the Defense of marriage Act is no longer applicable to the Department of Defense, it will be the policy of the Department to construe the words “spouse” and “marriage” without regard to sexual orientation, and married couples, irrespective of sexual orientation, and their dependents, will be granted full military benefits (http://​www.​defense.​gov/​news/​Same-SexBenefitsMwemo​.​pdff).

With the High Court striking down DOMA, the DOD construes the statutory definition of spouse as inclusive. Generally, the military considers marriage valid if it was valid in the state where the marriage took place. A state-issued marriage certificate is normally all the evidence necessary to demonstrate that the marriage was considered valid by the state. Generally, marriages entered into foreign countries to foreign nationals must be approved by the military service beforehand. The military determines a marriage to be valid based on the law of the state where the marriage took place; thus, it should not matter in what state the couple lived when they married, what state they moved to after the marriage, or where a spouse was stationed around the world. Once a spouse is recognized by the military as a spouse, the laws of the state in which the couple lives no longer play a role in whether either spouse is eligible for spousal benefits from the military (http://​hrc-assets.​s3-website-us-east-1.​amazonaws.​com/​files/​assets/​resources/​POST-DOMA_​MilitarySpousalB​enefits_​v3.​pdf).

Veteran’s Spousal Benefits. Two categories of veterans receive benefits from the Department of Veterans Affairs (DOA): qualified non-retired (those who meet eligibility requirements for specific benefits usually related to time-in-service and discharge characterization) and retirees (those who served at least 20 years in the military and who formally retired from military service). A veteran spouse or surviving spouse is defined as a person of the opposite sex who is a wife or husband. However, the repeal of DOMA appears to make these definitions constitutionally invalid and no longer enforceable. On the other hand, the statutes that govern veteran’s benefits contain problematic provisions for determining when a marriage is valid. Because determination of marriage validity derives from federal statues, action will likely be required by the courts or Congress. A better standard would be a “place of celebration” rule, so that spousal status is assessed according to the law of the state where one married or secured a spousal status. This is the standard DOD and the military use, where there is no statute specifying a place of residence rule. Unless a “place of celebration” rule is established for the VA, if a veteran and his or her spouse traveled from a state that would not recognize the marriage in order to marry in a state that recognizes the marriage of same-sex couples and lived in a non-recognition state when their veteran’s benefits took effect, they will likely not be considered married for purposes of the VA (http://​hrc-assets.​s3-website-us-east-1.​amizonaws.​com/​files/​assets/​resources/​Post-DOMA_​FSS_​Veteran_​Spousal_​Benefits_​v3.​pdf.

Immigration (binational). Immigration is a complicated area of law, with many factors specific to each individual. Before the repeal of DOMA, LG persons were advised not to marry their partner, because for the most common type of non-immigrant visas (e.g., tourist, student), the foreign national entering the USA must demonstrate to US immigration officials that he or she does not have the intent to remain in the USA. Now, however, it is anticipated that for those seeking permanent resident status in the USA based on marital relationship, in many cases it will make sense to marry and file for permanent benefits. Furthermore, in many cases, an LG person can marry his or her partner and sponsor him or her for a green card. Options for families will vary from case to case, based upon a number of factors including whether the partners are living together or in different countries; whether the partners are living together in the USA or abroad; whether the partners have married; whether the partners can marry; and for families together in the USA, whether the non-US citizen partner arrived here after having been inspected by an immigration officer or whether the partner entered without inspection. Same-sex couples will also have to meet the general criteria for marriage-based immigration. Other considerations are specific for immigrants who are in lawful immigration status versus those who are out of status (http://​hrc-assets.​s3-website-us-east-1.​amazonaws.​com/​files/​assets/​resources/​Post-DOMA_​FSS_​Immigration_​v3.​pdf). For additional information about the procedure to apply for marriage-based immigration petitions on behalf of foreign spouses who are inside the U.S., see Immigration Equality's adjustment of status (www.​immigrationequal​ity.​org/​issues/​transgender/​adjustment-of-status-procedural-steps/​). For foreign spouses who are outside the USA, see Immigration Equality’s consular processing (www.​immigrationequal​ity.​org/​issues/​transgender/​consular-processing-procedural-steps/​) (see Chapter 13 in this text for further discussion on LGBT immigrants).

Private Employment Issues and Benefits. Although discrimination against married same-sex couples under the DOMA did not bar private employers from offering most spousal employment benefits to employees’ same-sex spouses, it subjected them to discriminatory tax treatment and other forms of unequal treatment. If a spouse is covered under an employer’s health plan and is considered validly married by the federal government, both partners should be eligible for the following additional federal protections: (a) The value of the spouse’s health insurance will not be treated as taxable income to the employee or to the spouse; (b) the spouse and children have the right to remain covered by the employed spouse’s health plan regardless of loss of job or reduction of hours, or if divorced or separated (COBRA coverage or COBRA continuation coverage); and (c) while most health plans only allow enrollment at specific times, marriage or divorce are “qualifying events” that will permit enrollment or un-enrollment outside specific time periods. In addition to these protections, the partners may have other rights under state law. If the couple lives in a state that recognizes the marriage, for benefit purposes, the federal government will consider the marriage valid, and thus, the partners have a right to all the protections offered to spouses under federal law. In states that do not recognize same-sex marriage, there may be some initial uncertainty because the IRS ordinarily follows the law of the state of primary residence in determining whether to recognize a marriage. Because the IRS and Department of Labor regulate some programs, it may take some time to obtain guidance as to which marriages will be treated as valid by the federal government (http://​hrc-assets.​s3-website-us-east-1.​amazonaws.​com/​files/​assets/​resources/​Post-Doma_​Private_​FEDERAL_​TAXES.​pdf). For more information about federal regulation of employee benefits, see www.​dol.​gov/​cbsa/​faqs/​faq_​compliance_​pension.​html and www.​aging.​senate.​gov/​crs/​pension7.​pdf.

For persons in same-sex marriages, recognition of the marriage by the federal government carries different implications than those of the state, especially in states that do not respect or recognize same-sex marriage. Among LGBT advocates and supporters, the general tone is that the repeal of DOMA is a major victory in equity to spousal benefits for LGBT persons. Most LGBT persons regard recognition of same-sex marriage in all states as the ultimate victory for LGBT persons and families as pertain to spousal benefits, protections, and privileges.

Potentially, the repeal of DOMA has paved the way for less complicated processes for LGBT persons in inheritance and estate planning; however, caution in these matters is urged. Issues of life and estate planning are typically the purview of state rather than federal law. Although marriage equality and relationship recognition for LGBT elders are making rapid changes, many states still do not provide protections for LGBT people and relationships. Life and estate planning is particularly important for the LGBT community. State laws dictate an order of succession regarding what happens to a person’s assets if he or she dies without a will. Usually, if the person is married, his or her assets will be disbursed to the surviving spouse and children. If the person has no surviving spouse or children, his or her assets will go to other relatives. In a marriage equality state, this scenario holds regardless of the gender of the spouses. This chain of succession may provide a modicum of protection, although not to the same extent as a comprehensive estate plan. Difficulties could arise if a same-sex couple marries in a marriage equality state and then moves to a non-recognition state. There, should one spouse die without a will, the surviving spouse will likely not receive the deceased spouse’s assets, and surviving children might not either. The deceased spouse’s assets could then be distributed to his or her relatives, often contrary to his or her intent (Human Rights Campaign 2013).

Consequently, contents on the Web site of the Human Rights Campaign (2013) urge the LGBT community to treat such matters formally, without relying on default rules of state law. The Web site emphasizes that eliminating DOMA addressed only some life and estate planning concerns of married same-sex couples while creating complexities for others. For instance, federal benefits and protections available to same-sex couples may depend on where the couple was married or on where they currently live. Moreover, the Web site emphasizes that although overturning DOMA was a major victory for the LGBT community, it does not reduce or eliminate the need for comprehensive life and estate planning. In light of the DOMA ruling, it is critically important that all same-sex couples work with their financial and legal advisers to review their life and estate plans (Human Rights Campaign 2013). In addition, the National Center for Lesbian Rights (NCLR 2011) recommends the person selected as the surrogate decision-maker should be the person most likely to be knowledgeable about the individual’s wishes. In comments submitted to the Centers for Medicare and Medicaid Services for a model for determining medical decision-making and advance directives for LGBT patients, NCLR stated the policy should not rely on an arbitrary ranking of family members. Instead, “determination should be based on proof of a close, personal relationship such as proof of shared residence, a shared social or personal life, and a relationship that exhibits a particularly high level of closeness and care” (p. 7). In other words, consideration for surrogacy should not be based simply on biological relationship as opposed to family of choice.

The right to make medical decisions is a protected individual right held solely by a patient who is competent and able to make such decisions. The expanded scope of exclusivity of this right to privacy of patient information and records has limited a patient’s spouse, domestic partner, and other family members’ access (Vergari 2007). In 2010, President Obama issued a presidential memorandum on hospital visitation that called for “appropriate rulemaking … to ensure that hospitals that participate in Medicare or Medicaid respect the rights of patients to visitors.” The recommendation was for the US Department of Health and Human Services (HHS) to develop guidelines for hospital visitation that prohibit discrimination based on race, color, national origin, religion, sex, sexual orientation, gender identity, or disability. Later that year, HHS issued regulations that prohibit these types of discrimination in hospital visitation and make it clear that designated visitors should be permitted access to patients regardless of whether or not they have a legally recognized relationship. In addition, these regulations require hospitals to have written guidelines and inform patients of their visitation rights. A year later, HHS released a guidance letter to implement and enforce visitation, healthcare proxy, and advance directive requirements. In tandem with the presidential memorandum and HHS guidelines, additional non-discrimination protections are in the ACA’s non-discrimination provision, Section 1557 (Riou 2014). For hospitals participating in Medicaid and Medicare, see Table 36.2 for requirement of written policies and procedures regarding patients’ visitation rights.

The law explicitly grants same-sex couples equal or substantially equivalent standing to other family members in 36 states, and D.C. Law offers limited recognition of same-sex partners through broad language in five states. Same-sex couples are treated as legal strangers in nine states. Of LGBT persons covered by laws, 75 % live in states with inclusive medical decision-making laws, 4 % live in states with limited recognition of same-sex couples, and 23 % live in states where same-sex couples are treated as legal strangers (Movement Advancement Project 2015).

It is especially important for LGBT persons to take steps to ensure that the people whom they choose may visit them and make medical decisions on their behalf in an emergency situation and to protect visitation and decision-making rights: (a) complete advance healthcare directives and visitation authorization forms, (b) talk with a primary care physician about preferred visitors and advance healthcare directives, (c) work with local hospitals to file completed forms, and (d) carry information related to advance healthcare directives and visitation authorization forms in a wallet or other readily accessible area for emergencies (Human Rights Campaign 2011). Additional information on living will, healthcare proxy, and other medical decision-making tools is available at http://​www.​hrc.​org under the tag, working for LGBT equal rights.

Despite pro-LGBT healthcare decision-making rights recommendations and policy released by the Obama administration, the Institute of Medicine, and HHS, Wahlert and Fiester (2013) warn of a false sense of security concerning surrogate decision-making rights for LGBT patients and families in the American healthcare system. The authors proposed that, “new regulations on surrogate decision-making merely invoke a sense of universal patient rights rather than actually generating them” (p. 802). LGBT patients are vulnerable to being mislead into believing that their rights extend further than they do in specific areas of medical practices, particularly misinterpretation of surrogate decision-making. For example, “many LGBT patients mistakenly believe that they have been granted additional federal rights to make end-of-life decisions for their loved ones when, in fact, they have not” (p. 802). Wahlert and Fiester urged that, as policies are being developed and implemented, policymakers must be careful not to overstate the ground being gained.

Certainly, the impending US Supreme Court decision concerning DOMA will be a landmark civil rights decision concerning the rights of all LGBT persons, especially those who are elderly. Historically, marriage and its attendant benefits have been the purview of states, and as such, the federal government has been loathe to interfere. However, in the USA v. Windsor, the US Supreme Court held that “the federal government could not refuse to recognize or provide benefits to people in same-sex marriages that were conducted in states where they were legal” and that withholding federal recognition of same-sex married couples “places them in an unstable position of being in second-tier marriages” and “demeans the couple.” Also, the military has liberalized its policy to allow same-sex couples to have rights commensurate to those of different-sex couples. And with the Supreme Court ruling on same-sex marriages, other rights and benefits should follow. Still, in every domain—Medicare, Medicaid, Social Security, estate planning, surrogate decision-making, and immigration—the law is “not quite there” yet, and so caution is urged. At the time of this writing, the best defense appears to be a formal and legal one rather than relying on any other mechanism. Of course, the US Supreme Court ruling that DOMA is unconstitutional, such cautionary advice may not be needed.