March 7, 2013
Authored by: Lisa Van Fleet
With over 1,100 federal statutory provisions in which marital status is a factor in determining access to statutory benefits, rights, or privileges, the outcome of the challenge to the constitutionality of laws adversely impacting same-sex marriages could have a significant effect on employee benefits.
Under the federal Defense of Marriage Act (DOMA), for purposes of federal law, the word “marriage” means only a legal union between a man and a woman, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife. This means that under current law, Federal benefits available to opposite-sex spouses are not available to same-sex spouses even when they are legally married under state law.
Later this month, the Supreme Court will hear oral arguments on two cases that could change this result. Windsor v. United States is a constitutional challenge to Section 3 of DOMA, which defines marriage to exclude same-sex marriages. Hollingsworth v. Perry is a constitutional challenge to Proposition 8, a California ballot initiative that amended the state constitution to ban same-sex marriage.
So far, over 300 employers including many of America’s top companies, e.g., Amazon.com, Apple, Citigroup, Ernst & Young, Google, Intel, Microsoft, Starbucks, Walt Disney, have signed a petition in a brief submitted to the Supreme Court urging that the Court declare Section 3 of DOMA unconstitutional. Similar briefs have been filed to declare Proposition 8 unconstitutional. Final decisions on the cases are expected this summer.