June 12, 2017

June 12, 2017

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Upcoming State Voter Referendums on Same-Sex Marriage

Voter referendums on same-sex marriage will be on the November ballots in four states.  The outcome of these referendums may add complexity to the options and obligations of employers providing benefits for employees’ same-sex spouses and partners.

Maryland and Washington

Laws to legalize same-sex marriage were enacted by the state legislatures in both Maryland and Washington in February 2012.  However, whether the laws will actually take effect will be determined by voters in each state in the November election. 

The law enacted by the Maryland legislature permits same-sex couples to marry effective January 1, 2013.  It would replace an existing state law defining marriage as an opposite-sex union.  Maryland already recognizes domestic partnerships for same-sex couples whose relationship meets certain statutory requirements.  Domestic partners in Maryland are entitled to limited rights and obligations under state law, including the ability to make medical and burial decisions, and exemption from state inheritance taxes. 

The Washington law would have taken effect 90 days after the close of the state legislature’s session earlier this year.  It would replace an existing state law defining marriage as an opposite-sex union.  Washington began recognizing domestic partnerships in 2007, and a law enacted in 2009 extended all of the rights and benefits of marriage under state law to same-sex domestic partners registered with the state.


Maine will become the first state to legalize same-sex marriage by public vote if a pro-marriage referendum is passed by voters in November 2012.  A law that would have legalized same-sex marriage was enacted by the Maine legislature in 2009, but was repealed by a voter referendum before it took effect. 

Same-sex couples in Maine can currently register under the state’s domestic partnership laws that were enacted by the state legislature in 2004.  Domestic partners are granted some of the rights and protections extended to married couples under state law, including inheritance rights over their partners’ property, guardianship over their incapacitated partner, entitlement to make organ and tissue donations on behalf of their partner, and protection under the state’s domestic violence laws.


Voters in Minnesota will consider whether to amend their state constitution to define marriage as an opposite-sex union.  Minnesota already has a state law banning same-sex marriage.  Voters in North Carolina approved a similar amendment to their state constitution in May 2012.  Thirty states have amended their constitutions to limit marriage to opposite-sex couples; 11 have done so by enacting state laws. 

Next Steps for Employers

The rapid developments in state laws recognizing marriage and other forms of same-sex unions can be confusing for employers providing benefits to employees’ same-sex spouses and partners.  Employers should consider whether their benefit plans and procedures need to be updated to address the conflicting state law approaches to the recognition of marriages and other forms of same-sex unions.

© 2017 McDermott Will & Emery


About this Author


Todd A. Solomon is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Chicago office.  Todd focuses his practice primarily on designing, amending, and administering pension plans, profit sharing plans, 401(k) plans, employee stock ownership plans, 403(b) plans, and nonqualified deferred compensation arrangements.  He also counsels privately and publicly held corporations and tax-exempt entities regarding fiduciary issues under ERISA, employee benefits issues involved in corporate transactions, executive compensation matters, and the implementation of...

Brian J. Tiemann, Labor Attorney, McDermott Law Firm

Brian J. Tiemann is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Chicago office.   Brian focuses his practice on a variety of employee benefits matters related to pension plans, 401(k) plans, employee stock ownership plans (ESOPs), cafeteria and welfare plans, executive compensation and the implementation of benefit programs for domestic partners of employees.  He is a member of the Firm’s ESOP Affinity Group and has worked with clients to structure and maintain the qualified status of their ESOPs with the Internal Revenue Service.