The Supreme Court’s recent decision to strike down a key section of the Defense of Marriage Act (DOMA) will touch many areas of federal law, including housing issues and programs.
Although the landmark decision does not force states to allow same-sex marriage, it does call for same-sex couples who are married to receive the same federal benefits as heterosexual couples.
What does this mean for key housing programs?
Affordable Housing Finance asked leading housing attorneys to share their early thoughts.
“Conceivably, by expanding the concepts of who is married, and by implication, what constitutes a family, the United States v. Windsor decision could have an impact on issues like determination of familial income,” says Harry J. Kelly, a partner at the Nixon Peabody law firm and expert in housing law.
Most Department of Housing and Urban Development (HUD) rules on that subject focus on determining the income of people living together, regardless of the legal formality of whether those persons are married or not, he explains. HUD rules often talk about “family income” but do not define “family” on the basis of a legally recognized marriage, so DOMA’s demise may not have much impact, at least in that regard.
However, there are HUD occupancy rules that describe a family as including a “head of household” or “spouse.”
“So, to the extent that these rules make provisions for a spouse—for example, preserving the right of a surviving spouse to occupy a unit after the death of the head of household—a gay spouse will presumably now be able to take advantage of these rights and benefits,” says Kelly. “Here again, however, much depends on further guidance and clarification to be provided by the administration.”
Attorneys agree that HUD has been ahead on the issue, taking steps even before the recent court decision.
Recently, HUD issued new guidance that treats discrimination based on gender nonconformity or sex stereotyping as sex discrimination under the Fair Housing Act. In addition, on Feb. 3, 2012, HUD published a final rule, “Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity,” which requires HUD-funded and HUD-insured housing providers and Federal Housing Administration-approved lenders to provide equal access without regard to sexual orientation, gender identity, and marital status.
HUD recently released findings from a new study that shows same-sex couples receive unequal treatment compared to heterosexual couples when responding to internet ads for rental units.
“The DOMA ruling ratifies actions that HUD has taken over the last three to four years to ensure that the LGBT community has equal access to assisted housing,” says Leigh Poltrock, an attorney in the affordable housing and community development practice at Pepper Hamilton, pointing out that the definition of “family” in the Sec. 8 and public housing programs was expanded to include lesbian, gay, bisexual and transsexual households.
While the DOMA ruling is certainly a benchmark case, housing authorities and providers of Sec. 8 housing have been treating same-sex couples as families for some time now, she says.
Looking beyond the recent court decision, the Nixon Peabody team makes the key point that the nation’s main housing discrimination law, the Fair Housing Act, still does not prohibit discriminate on the basis of sexual orientation or general identity.
Some states and localities have adopted more expansive anti-discrimination laws that include sexual orientation and gender identity. “But at the federal level, the DOMA decision cannot be read as broadening the scope of protection offered to gay persons by the Act,” says Randy Kelly, another partner at Nixon Peabody.
“Perhaps the real significance of the Windsor decision will be to make legislators aware of the limitations in current federal law, and to provide impetus to amend the Fair Housing Act to address that topic,” he says. “In fact, such an amendment was introduced in Congress last week, but given anticipated resistance, especially in the House or Representatives, it is unclear whether any such amendment will be considered speedily.”
