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Employment: Defense of Marriage Act Unconstitutional
On June 26, the United States Supreme Court in United States v. Windsor, Case No. 12-307, 2013 U.S. LEXIS 4921, held that the Defense of Marriage Act’s (“DOMA”) definition of marriage as “only a legal union between one man and one woman as husband and wife” is unconstitutional, in that it violates the fifth amendment because it deprives persons of the equal protection of the laws. Specifically, the majority opinion stated:DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned 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.
The practical of effect of the Supreme Court’s decision was to provide the same federal benefits and protections to homosexual marriages that are provided to those in heterosexual marriages. Those employers that have operations and employees in states that recognize gay marriage may have to revise employee benefit plans to recognize homosexual spouses for purposes of determining surviving spouse annuities and/or death benefits, and for the administration of qualified domestic relations orders. 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 coverage for married gay couples in those states. As of the date of this article, the states that recognize gay marriage are: Connecticut, Delaware, Iowa, Maine, Massachusetts, Minnesota, Hampshire, New York, Rhode Island, Vermont, Washington, and now California.
COBRA and HIPAA special enrollment will also have to be offered in those states. Additionally, FMLA leave must now be provided to a married homosexual employee to care for his or her same-sex spouse who has a serious health condition, or for medical or non-medical leave for a spouse serving in the Armed Forces.
Turning to Ohio, a constitutional provision was adopted in Article 15, Section 11 which states the following:
Only a union between one man and one woman may be a marriage valid in or recognized by this State and its political subdivisions. This State and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.
Sections 3101.01(C)(1) and (2) of the Ohio Revised Code also provide that Ohio does not recognize same sex marriages that occurred in other states. Further, Section 2 of DOMA which was not at issue in Windsor and therefore not found to be unconstitutional, provides that no state shall be required to recognize same sex marriage from another state, or recognize a right or claim arising from such a relationship. Accordingly, as for now, Ohio employers do not have to make any changes based on the Windsor decision. However, given the broad language in the Windsor decision, challenges to Ohio’s same sex marriage law and other similar state laws are expected. As always, Ross, Brittain and Schonberg will keep you updated on any developments.
Should you have any questions or concerns regarding DOMA and its implications, please do not hesitate to contact Ryan Neumeyer or Lynn Schonberg