Supreme Court Strikes Down Defense of Marriage Act: What Are The Changes for Employers?
On June 26, 2013, the United States Supreme Court held that Section 3 the Defense of Marriage Act (DOMA), which prevented the federal government from recognizing state-granted same-sex marriages, was unconstitutional because it violated the Fifth Amendment by treating same-sex couples differently than heterosexual couples. As a result, federal agencies are rewriting their regulations with respect to benefits offered to married same-sex couples. For example, the Internal Revenue Service recently announced that legally married same-sex couples will be treated as married for federal tax purposes, regardless of the state in which they live. Similarly, on September 18, 2013, the Department of Labor clarified that legally married same-sex couples will be treated as married for Employee Retirement Benefit Security Act (ERISA) purposes, regardless of the state in which they live.
Although it may seem intuitive that a change in federal law—striking down a provision of DOMA—would affect the application of all federal laws pertaining to marriage in the same way nationwide, this is not necessarily the case. The Family and Medical Leave Act (FMLA) is a perfect example. The FMLA provides job-protected leave for qualified employees who need to provide care for family members, including spouses, with qualifying medical conditions. Significantly, however, the FMLA defines spouse as “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides.” Therefore, following the Supreme Court’s ruling,FMLA leave is now available to married same-sex couples who reside in the 13 states, and the District of Columbia, that recognize same-sex marriage. Employees who reside in a state that does not recognize same-sex marriage do not qualify for FMLA leave to care for an ill same-sex spouse, even if they were married in or work in a state that recognizes same-sex marriage.
Employers may choose to grant leave for employees to care for same-sex spouses or domestic partners that is akin to FMLA leave, but should not refer to such leave as FMLA. Employers should also stay abreast of state-law developments on recognition of same-sex marriages because of their potential impact on employer obligations under both state and federal law.
In Texas, state recognition of same-sex marriages and domestic partnerships remains in flux. On April 29, 2013, the Attorney General’s office issued an opinion providing that the Texas Constitution, which prohibits the state from recognizing “any legal status identical or similar to marriage,” prevents the state or state agencies from providing insurance benefits to employees’ domestic partners. This opinion significantly affects same-sex partners because they are not eligible for common law marriage status like unmarried heterosexual partners.
The Texas Supreme Court indicated a potential shift, however, when it recently agreed to hear two cases that challenge sections of the Texas Constitution and Texas Family Code that define marriage as between one man and one woman. Both cases involve same-sex couples who were married in Massachusetts and now seek to divorce in Texas. Texas courts have generally held that, because they are unable to recognize a marriage between two people of the same sex, they are unable to grant a divorce for a marriage they cannot recognize.
Oral argument for both cases is scheduled for November 5, 2013. The outcome could have significant impacts on employer obligations under both state and federal law.
 United States v. Windsor, 570 U.S. ____ (June 26, 2013).
 Forbes, IRS Rules that All Legal Same Sex Marriages will be Recognized for Federal Tax Purposes, August 29, 2013, available at: http://www.forbes.com/sites/kellyphillipserb/2013/08/29/irs-rules-all-legal-same-sex-marriages-will-be-recognized-for-federal-tax-purposes/
 Department of Labor, Technical Release 2013-04, Guidance to Employee Benefit Plans on the Definition of “Spouse” and “Marriage” under ERISA and the Supreme Court’s Decision in United States v. Windsor (Sept. 18, 2013) (adopting a rule recognizing, for ERISA purposes, marriages that are valid in the state in which they were celebrated, regardless of where the members of the couple reside or work).
 29 C.F.R. § 825.122(b).
 The states that currently legally recognize same-sex marriage are: California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington.