CMS Exceeds Its Authority in Doubling Down on Discrimination

CMS has substantial discretion in how it implements the Supreme Court’s Windsor decision. The agency’s discretion is not, however, unlimited. Thus, even though Windsor doesn’t obligate CMS to force state Medicaid programs to recognize the out-of-state marriage licenses of gay couples, neither does it grant CMS the authority to nullify federal fair housing protections for Medicaid beneficiaries by accommodating the preference of states that refuse to honor the marriage licenses of gay couples.