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Post-DOMA 101: What Is the Impact for Employers?

By Tom Cunningham

The Federal Defense of Marriage Act (“DOMA”) defined marriage as a union only between a man and a woman for purposes of approximately 1100 federal statutes, regulations, and government programs. Today, in United States v. Windsor, the United States Supreme Court held that portion of DOMA is unconstitutional. The Court explained that the responsibility for regulating and defining marriage has historically been vested in the states. Twelve states (including Iowa) and the District of Columbia have legalized same sex marriage. Principles of federalism (allowing the states to regulate state matters) and equal protection required the Court to strike down that portion of DOMA, the majority opinion concluded.

Windsor did not establish a federal constitutional right to same sex marriage; the fact that the couple in Windsor was legally married under state law was critical to the final decision. The legal rationale is somewhat muddled between federalism and equal protection, finding that the equal protection violation occurred because DOMA discriminated against same sex couples who were legally married in their states. As of today, these legally married same sex couples must be treated the same under federal law as married opposite sex couples.

What does this mean for employers? States that recognize same sex marriage will continue to do so, but when a federal employment law right pertains to “spouses”, that right now covers same sex spouses who are legally married under state law. The most obvious example for human resource managers and employment lawyers is the Family & Medical Leave Act. In states that recognize same sex marriage like Iowa, FMLA leave to care for a spouse with a serious health condition now extends to same sex spouses. In addition, health care benefits provided by an employer to a worker’s same sex spouse are no longer subject to federal income tax.

The Windsor decision, however, did not address the validity of that portion of DOMA that authorizes a state that does not permit same sex marriage to deny recognition to a married same sex couple from another state. Employers who have employees who were legally married to a same sex spouse in Iowa, for example, and now live and work in a state that does not recognize same sex marriage, will be faced with new additional legal issues, particularly in the tax and benefits areas. Federal and state tax treatment of those individuals is problematic and may depend on how the Obama Administration chooses to address these issues.

Employers with operations and employees in California should also be aware of today’s ruling by the U.S. Supreme Court in Hollingsworth vs. Perry, referred to in the press as the “Proposition 8” case. The California Supreme Court had ruled that same sex marriage was permissible as a matter of California state constitutional law. Several months later the voters in California enacted Proposition 8, which amended the California state constitution to limit marriage to those unions between a man and a woman. Several same sex couples challenged Proposition 8 in the U.S. District Court for the Northern District of California, alleging that the state constitutional amendment was unconstitutional as a matter of federal constitutional law. California government officials declined to defend Proposition 8 in court, so the proponents of Proposition 8 defended the law and lost in a bench trial.

The backers of Proposition 8 then appealed to the Ninth Circuit Court of Appeals. The California Supreme Court (in response to a certified question from the Ninth Circuit) determined that the Proposition 8 backers had standing under California state law to defend Proposition 8 and appeal the district court ruling. The Ninth Circuit thereafter addressed the merits of the case and affirmed the lower court. However, today the U.S. Supreme Court held that the Proposition 8 proponents did not have legal standing to defend Proposition 8 in court in the first place. As a result, the Ninth Circuit was without jurisdiction to hear the appeal, and its decision affirming the district court was vacated. The Supreme Court remanded the case back to the Ninth Circuit with instructions to dismiss the appeal.

So, what does this mean for Iowa employers with employees in California? It means that one federal district court in California has ruled that Proposition 8 violates the Fourteenth Amendment to the U.S. Constitution and that same sex couples may marry in California. Technically speaking, the decision does not have any legally binding effect outside the Northern District of California. As a practical matter, unless and until the state government of California decides to defend and enforce Proposition 8 in another case, same sex marriage will occur statewide in California (making it the thirteenth state with same sex marriage) and employers with operations and employees there should govern themselves accordingly.



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