On June 26, 2013, in United States v. Windsor, the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act as unconstitutional. The Consumer Financial Protection Bureau (CFPB) has noted on its blog that the decision has important consequences for its work.
In order to fully implement the decision, the CFPB has taken steps to clarify how the decision affects the rules for which the agency is responsible. Recently, CFPB Director Cordray issued a memo to staff (click here for the memo) clarifying that, “to the extent permitted by federal law, it is our policy to recognize all lawful marriages valid at the time of the marriage in the jurisdiction where the marriage was celebrated. This aligns our policy with other agencies across the federal government.”
This policy applies to all of the laws, regulations, and policies that the CFPB administers, including the Equal Credit Opportunity Act (ECOA), Fair Debt Collection Practices Act (FDCPA), Truth in Lending Act (TILA), and Real Estate Settlement Procedures Act (RESPA). That means that when it comes to administering, enforcing, or interpreting the laws, regulations, and policies, the CFPB uses and interprets the terms like “spouse,” “marriage,” “married,” “husband,” “wife,” and any other similar terms related to family or marital status to include lawful same-sex marriages and lawfully married same-sex spouses.
You will hear more on this issue in the near future. It raises some tough questions that hinge on the phrase, “recognize all lawful marriages valid at the time of the marriage in the jurisdiction where the marriage was celebrated.”
- Was a marriage lawful when and where it was celebrated?
- If the couple resides in a different state from which the marriage was celebrated, is the marriage lawful there?
- Do we need to perform due diligence to determine if a couple is married, when they were married and where were they married?
- What do we do if the couple is from Indiana where a federal court overruled a ban on same sex marriages, then several apparently legal same-sex marriages were performed, then a federal appeals court overruled the lower court decision. Now the state has announced that it will not honor the same-sex marriages legally performed before the appeals court decision, with an exception for one couple. One spouse in that marriage is suffering from fatal cancer.
It is complicated. It is rapidly changing. And it will lead to violations.