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Evolving Laws Regarding Same-Sex Marriage and Domestic Partnerships in the U.S. Complicate the Provision of Employee Benefits

Posted on December 4, 2009 by Littler Mendelson

This year, many states have grappled with whether to legally recognize same-sex marriage and/or domestic partnerships.  Within the past two months alone, Maine and New York have rejected measures that would have permitted same-sex couples to wed, while the District of Columbia approved, in the first of two required votes, legislation that would sanction same-sex marriage.  Vermont, Connecticut, and New Hampshire have already legalized same-sex marriage, while at least 11 other states have enacted civil union or domestic partnership laws that confer certain benefits to heterosexual or same-sex partners.

These new and conflicting laws present challenges to employers that provide insured group health plans to their employees.  In states that recognize same-sex marriage or provide registered domestic partners with rights equal to those conferred on spouses, employers may be required to extend spousal benefits coverage to the same-sex spouse or domestic partner, provided that the insurer is state-regulated.  Employee benefit plans (including self-insured group health plans) that are solely regulated by federal law, the Employee Retirement Income Security Act (ERISA), or the federal tax treatment of employee benefits, are generally unaffected by same-sex state laws, as the Defense of Marriage Act (DOMA) limits marriage recognized under federal law to a legal union between one man and one woman.  Two recent cases in California, however, have challenged this assumption, further muddying the legal waters.  As laws addressing same-sex couples continue to be introduced at the state and federal level, employers should examine their benefits plans to ensure they remain in compliance.

For a more detailed explanation of the various state same-sex laws and recent court challenges involving the provision of employee benefits to domestic partners and same-sex spouses, see Littler's ASAP:  An Update For Employers on Domestic Partnership and Same-Sex Marriage Laws written by Nancy L. Ober.

Tags: Domestic Partnerships, Same-Sex Marriage
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