YourABA: June 2013
YourABA September 2013 Masthead

DOMA, Prop 8 rulings leave web
of employment benefits laws to untangle

The Supreme Court rulings on the Defense of Marriage Act and California's Proposition 8 have left employers and employees with a host of unanswered questions in regards to employee benefits — and many of these questions do not yet have a clear answer.

A panel of legal experts at the Annual Meeting discussed the ramifications of the court decisions for the employment sector and the questions that have arisen, including who qualifies as a spouse and who is eligible for what benefits.

A lot of litigation is already popping up in the wake of the decisions in U.S. v. Windsor and Hollingsworth v. Perry, according to Shannon Price Minter, legal director of the National Center for Lesbian Rights.

Although the Windsor ruling struck down Section 3 of DOMA, which had prevented the federal government from extending spousal rights to same-sex couples, states remain free to exclude same-sex couples from civil marriage and are not required to recognize same-sex marriages.

“The big question in the wake of Windsor is will all legally married same-sex couples be eligible for all federal benefits regardless of where those couples live, regardless of whether their state respects their marriage,” Minter said. “That's the question on everyone's mind. We don't know the answer yet, but we're pushing very hard for the administration to take a position that, yes, all legally married couples should get all federal benefits.”

It could be very problematic if federal benefits are not provided to legally married same-sex couples simply because their state has discriminatory laws with regard to marriage, he said. But he added that he is “confident” the administration will work to extend those benefits to all legally married couples.

Minter noted that the question of whether benefits will be extended to couples in civil unions or domestic partnerships is more complicated.

“That we have much less clarity on, and I'm not sure on how that one's going to go,” he said.

Teresa S. Renaker, shareholder at Lewis Feinberg Lee Renaker & Jackson PC in Oakland, Calif., said the distinction between a domestic partner and a spouse and the definition of a spouse will be key issues in determining benefits. She said she is interested to see how “spousal equivalent statuses” will end up being treated in this new context.

Moderator J. Randall Coffey, a partner at Fisher & Phillips LLP in Kansas City, Mo., said there are more than 1,000 federal statutes that reference the term spouse and that with the demise of DOMA, there is no longer a uniform definition of that term for purposes of federal law.

“We don't really know yet exactly what the various federal agencies are going to do in terms of how they interpret that language in each of those statutes,” he said.

Laura J. Maechtlen, a partner at Seyfarth Shaw LLP in San Francisco, said that while employers wait on guidance from the government on this issue, she advises them to “be careful and be risk averse and don't be the test case.”

Minter agreed, saying, “If I were an employer, I would want to be erring on the side of caution.”

Renaker said one thing we do know for sure is that the collection of spousal rights in pension plans that are mandated by the Employee Retirement Income Security Act and the Internal Revenue Code now apply to federally recognized same-sex spouses. That includes survivor benefits, consent requirements for beneficiaries other than the spouse and division of benefits on divorce.

“It's really important for plan administrators to be thinking about what does this mean for our plan participants?” Renaker said. She discussed the retroactive effect of recognizing same-sex marriage, saying that since DOMA was never actually valid, a married same-sex spouse could seek to retroactively claim benefits previously denied to them.

“It's not often that people get married by operation of law, and that's what has happened here,” Renaker said. “All of these rights changed without them doing anything. … They've now got a whole host of rights and obligations under federal law that they didn't have before.”

"More than an Equal Sign: DOMA, Prop 8, the Supreme Court, and Your Practice" was sponsored by the Commission on Sexual Orientation and Gender Identity.

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