CFPB Establishes Policy of Equal Treatment for Same-Sex Marriages

A recent CFPB blog post released a staff memorandum from Director Cordray establishing the CFPB’s policy as to same-sex marriages in light of the U.S. Supreme Court’s decision on same sex marriages and the Defense of Marriage Act (DOMA). The United States v. Windsor struck down a DOMA provision that restricted the definition of marriage to legal unions between a man and woman. As a result, the CFPB’s policy is to recognize “all lawful marriages valid at the time of the marriage in the jurisdiction where the marriage was celebrated.” Any references to terms such as “marriage,” “spouse,” etc., will be interpreted to apply to any valid same-sex marriage. The policy applies to the following laws, regulations, and guidances:

• Equal Credit Opportunity Act and Regulation B — for example, 15 USC 1691d(a) permits creditors to request a spouse’s signature for certain purposes and prohibits creditors from discriminating on the basis of marital status (but note that the policy states that it does not address how consumers should respond to credit application inquiries about the applicant’s marital status)

• Fair Debt Collection Practices Act — for example, 15 USC 1692c(d) defines “consumer” to include the consumer’s spouse

• Truth in Lending Act and Regulation Z — for example, 15 USC 1637(c)(8) requires a creditor to obtain a cosignor for credit card applicants under the age of 21, and spouses are listed as eligible cosignors

• Real Estate Settlement Procedures Act and Regulation X — for example, 12 USC 2602(8) defines the term “associate” to include “spouse”

• Interstate Land Sales Full Disclosure Act and Regulation J

• Internal CFPB rules (the Bureau Ethics Regulations and Procedures for Bureau Debt Collection)

Importantly, the memorandum states that while it recognizes same-sex marriages, the CFPB will not treat a civil union or a domestic partnership as a marriage. Illinois law recognizes both civil unions (between same-sex and opposite-sex couples) and same-sex marriages. The Religious Freedom and Marriage Fairness Act, which provides for same-sex marriage in Illinois, took effect in June 2014. The Illinois Religious Freedom Protection and Civil Union Act, provides for civil unions and applies all of the obligations, responsibilities, protections, and benefits of marriages recognized under Illinois law to civil unions. As a result, for Illinois law purposes, a civil union can be treated as a marriage — for example, a party to a civil union may need to sign the Homestead Exemption Waiver under 735 ILCS 5/12-904. However, for federal law purposes, the CFPB will not recognize a civil union as a marriage. The CFPB policy will recognize only marriages.