By Callan Carter and Michelle Anderson
As the 2012 term of the U.S. Supreme Court comes to a close, the Justices left the most politically and emotionally charged decisions for last.
Today (June 26) the Court handed down its decision striking down the federal Defense of Marriage Act (DOMA) in United States v. Windsor. A companion case challenging California’s Proposition 8 was remanded to the U.S. Court of Appeals for the 9th Circuit for lack of standing by the proponents of the law in Hollingsworth v. Perry.
While the political and cultural impact of the decisions will be felt nationwide, there will also be some direct effects felt by employers.
Issues on appeal
The appeal in Windsor presented three questions:
- Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their state;
- Whether the executive branch’s agreement with the court below that DOMA is unconstitutional deprived the Supreme Court of jurisdiction to decide the case; and,
- Whether the Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG) had standing under Article III of the Constitution to argue the case.
The Hollingsworth case presented the following issues:
- Whether ProtectMarriage.com (Hollingsworth) had standing under Article III of the Constitution to argue the case; and,
- Whether the Equal Protection Clause of the 14th Amendment prohibits the State of California from defining marriage as the union between a man and a woman.
Upon determining that the Court had jurisdiction to hear the case and that the parties had proper standing, the Supreme Court, in a 5-4 decision, ruled in Windsor that Section 3 of DOMA is unconstitutional. The Court held that federal DOMA deprives persons of the equal liberty protected by the Fifth Amendment. The opinion stated:
By history and tradition the definition and regulation of marriage has been treated as being within the authority and realm of the separate states. Congress has enacted discrete statutes to regulate the meaning of marriage in order to further federal policy, but DOMA, with a directive applicable to over 1,000 federal statutes and the whole realm of federal regulations, has a far greater reach. Its operation is also directed to a class of persons that the law of New York, and of 11 other States, have sought to protect.”
The Court’s opinion, written by Justice Anthony Kennedy, reviews the history of the constitutional guarantees afforded to marriage as an area that has long been regarded as an “exclusive province of the States.” Since Section 3 of DOMA rejects the concept that domestic relations are reserved to the states, it has now been overturned on the grounds that it denies a class of people, in states where same-sex marriage is legal, due process and equal protection under the law. As the Court put it:
DOMA’s principal effect is to identify and make unequal a subset of state-sanctions marriages. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State. It also forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.”
In the companion case, Hollingsworth, the Court did not reach the constitutionality issue of California’s Proposition 8. The opinion, which was also a 5-4 decision, was written by Chief Justice John Roberts, who explained that Hollingsworth did not have legal standing to challenge the ruling of the California Supreme Court before the 9th U.S. Circuit Court of Appeals, based in San Francisco.
The Hollingsworth case has been remanded to the 9th Circuit, but the practical result of today’s ruling is that Proposition 8 has been overturned based upon the substantive rulings by the lower courts which deemed it unconstitutional. Therefore, same-sex marriage will again be legally recognized in California.
The impact on employers
As Justice Kennedy explained in the Windsor opinion, Section 3 of DOMA wrote “inequality into the entire United States Code.” Now that this section has been struck down, presumably federal benefits and protections currently provided to opposite-sex couples will be extended to those in state-recognized same-sex marriages.
This decision could impact federal laws and regulations in numerous areas, including employment law. Now that same-sex marriage is squarely resting in the hands of each state to determine whether it will be legally recognized, employers are left wondering what this means for them.
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In the context of employee benefits, employers with pension and 401(k) plans may be required to recognize same-sex spouses for purposes of determining surviving spouse annuities or death benefits and administration of qualified domestic relations orders (QDROs).
Federal income tax treatment of health and welfare coverage may also be affected, in that employees will no longer be taxed on the value of the coverage for a same-sex spouse that is not a federal tax dependent under Internal Revenue Code Section 152.
Employers will also have to offer COBRA continuation and Health Insurance Portability and Accountability Act (HIPAA) special enrollment rights to same-sex spouses. Federal leave laws, such as the Family and Medical Leave Act (FMLA), which provides that an employee may take job protected leave to care for a spouse with a serious health condition or medical and non-medical leave for a spouse serving in the Armed Forces, are also implicated.
Same-sex recognition only in 13 states and D.C.
This change to federal recognition of same-sex marriages will only occur in states where same-sex marriage is recognized. Currently, there are 13 states which recognize same sex marriage: Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington, and now California. It is also recognized in the District of Columbia.
Therefore, employers in those states should continue to monitor state and federal legislation that may seek to clarify the impact of the rulings in these areas and consult with their benefits counsel about potential impacts for current and upcoming benefit plan years.
This should, however, be welcome relief for those employers in the above states whose payroll departments have been struggling with different state and federal taxation of the same employee benefit.
This was originally published on Fisher & Phillips’ Legal Alerts. This Legal Alert is intended to provide an overview of an important new law. It is not intended to be, nor should it be construed as, legal advice for any particular fact situation.