Friday, February 7
As a result of the high court’s ruling last year in U.S. v. Windsor, in which it struck down section 3 of the Defense of Marriage Act, same-sex couples who are legally married in any state are required to be recognized as “spouses” for purposes of federal law.
At the American Bar Association Midyear Meeting this week, legal experts will examine the immediate effects of the ruling on employers’ health and welfare plans, retirement plans and other benefit programs. The session “DOMA Overruled: Implications for Health Care Plans and Other Employee Benefits” will take place from 9:15 to 10:15 a.m. on Friday, Feb. 7, at the Swissotel in Chicago.
Panelist Kathryn J. Kennedy, an associate dean at the John Marshall Law School and director of the Center for Tax Law and Employee Benefits, said the Supreme Court’s ruling “left open many questions, two of which are significant for employee benefit plans: Will the federal government recognize same-sex marriages validated in the state of celebration even though the couple now reside or work in a state that does not recognize same-sex marriages, and what is the retroactive effect of the decision given that Massachusetts recognized same-sex marriages as early as 2004?”
The Internal Revenue Service and the U.S. Department of Labor have affirmed that a same-sex marriage validated in the state of celebration would still be valid if the couple moved to a state that did not recognize same-sex marriages, Kennedy said. However, the agencies have not yet issued guidance regarding the retroactive effect of the Windsor decision, she added.
“The session will not be focusing as much on the regulatory guidance that has already been issued but directed more as to how employers are coping with the retroactivity issues of the Windsor decision and what future regulatory guidance is needed for employers to effectively amend and administer their employee benefit plans,” Kennedy said.
Panelist Anne Prenner Schmidt, an associate at Roetzel & Andress who focuses her practice on executive compensation, employee benefits and ERISA, said she will discuss “the remaining ‘gray area’ post-Windsor and how courts and states are dealing with current and possible future litigation.”
Schmidt said she will cover the cases of Obergefell v. Kasich and Cozen O’Connor v. Tobits as well as some other recent cases.
“Employers and plan sponsors should consider carefully how to interpret the Windsor ruling in the context of their various benefit plans and overall employment and HR policies,” she said. “In addition, employers and plan sponsors should stay current with guidance for how the Windsor ruling impacts legal compliance under not just ERISA, but COBRA, HIPAA and health care reform as well. Staying on top of Windsor’s legal implications not only encourages strong compliance practices, but will prevent possible future ERISA litigation as well.”
Panelists will also comment on the current same-sex marriage controversy in Utah. A federal district court judge, relying on the Windsor decision, ruled last month that Utah’s ban against same-sex marriages was unconstitutional, and gay marriages began occurring in late December. However, the U.S. Supreme Court on Jan. 6 issued a stay to halt those same-sex marriages until the 10th U.S. Circuit Court of Appeals issues a ruling on the state’s appeal.
Kennedy said the Supreme Court’s stay signals that the court may be willing to rule on the constitutionality of a state’s ban on same-sex marriages.
The session, sponsored by the ABA Young Lawyers Division, will be moderated by Jeff Arnold, an associate at Seyfarth Shaw and a member of the firm’s Employee Benefits & Executive Compensation Department.