The Defense of Marriage Act Decision – What Does it Mean?

The federal Defense of Marriage Act (DOMA) provided two things: Section 3 established a federal definition of marriage as a legal union between one man and one woman and Section 2 provided that no state shall be required to recognize as a marriage any relationship between individuals of the same sex even if it is treated as a marriage by another state and no state shall be required to grant rights based on such relationship.

The United States Supreme Court ruled that Section 3 of DOMA is unconstitutional.  Therefore, for purposes of federal law, the Supreme Court’s ruling gives same-sex marriages the same status as that afforded to opposite-sex marriages.  This means, for example, that a same-sex couple married in New York may file their income tax return as “married, filing jointly.”  However, because Section 2 of DOMA remains intact, if this same couple moves to a state that does not recognize same-sex marriage, the second state does not have to recognize this same-sex marriage that is valid under New York law.

To further complicate matters, because federal benefits vary by agency, certain federal laws may not be available to this New York married same-sex couple if they move to a state that forbids or does not authorize same-sex marriage.  For example, if this couple moves to Florida and one partner passes away, because Social Security death benefits are awarded based on the applicant’s status where the death occurred, the couple could not, under current law, be considered married for Social Security benefits.

In short, while the repeal of Section 3 of DOMA has been hailed as a major victory for same-sex couples, they still face a legal patchwork of state laws.  While additional guidance will be needed before employers can be given a thorough assessment of the implications of the repeal of the opposite-sex definition of marriage under various federal labor and tax laws, some ramifications are clear:

1. Employer recognition of same-sex spouses for COBRA (Consolidated Omnibus Budget Reconciliation Act) and HIPAA (Health Insurance Portability and Accountability Act);

2. Participants in a Code section 125 cafeteria plan can pay for coverage of same-sex spouses with pre-tax collars;

3. Spousal rights to death benefits and forms of benefits (e.g., QJSA [Qualified Joint and Survivor Annuity]) under a qualified retirement plan will now apply to same-sex spouses;

4. FMLA (Family Medical Leave Act) leave will apply to care for a same-sex spouse; and

5. QDRO (Qualified Domestic Relations Orders) will recognize same-sex spouses as alternate payees.

As guidance is issued and unanswered questions are resolved, we will provide updated information in future posts.

Blog post written by Theresa Borzelli.