Same Sex Marriage, Civil Unions, and Employee Benefits: Unequal Protection under the Law - When Will Society Catch Up with the Business Community?

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ABSTRACT

After the 2004 Presidential election, America was proclaimed to be a nation of red and blue states, with red states purportedly disfavoring same sex marriage and civil unions, and blue states seemingly more tolerant. Election day polling convinced most of America that the feelings on same sex relationships run deep, given that one in every five voters cited "moral values" as their top priority in determining their vote. But what was left out of the polls and post-election hype was this: American businesses, including most of the Fortune 500, have been providing increasing benefits to same sex couples for years, even in the red states.

Will the attitude of society catch up to the business community? And will new laws, including those banning civil unions, become a factor in where businesses choose to locate, or perhaps even inspire the business community to promote more tolerance toward same sex relationships and encourage the broader society to follow its lead? This paper examines the history of same sex benefits, civil unions, and same sex marriage, comparing the attitudes of the business community with those of society at large.

THE BUSINESS RESPONSE TO REQUESTS FOR SAME-SEX BENEFITS

"Same-sex marriage may seem revolutionary, but for American business, the idea truly is evolutionary." (Same-Sex Marriage: What's at Stake for Business). In 1990, Lotus, now a division of IBM, became the first publicly traded company to offer "spousal equivalent" benefits to the partners of lesbian and gay employees. (Id.) By 2000, the nation's Big Three automakers announced that they would offer full health benefits to same-sex domestic partners of their half million employees. (Auto Firms to Provide Same-Sex Benefits). United Airlines, American Airlines, and U. S. Airways also provide same-sex benefits. (Id.) Two hundred and eleven Fortune 500 companies - including almost three-fourths of the top 50, have begun providing same-sex benefits. (Same-Sex Marriage: What's at Stake for Business?)

Today more than 7,400 companies offer equal benefits to same-sex partners of their employees. (Id.) Those companies, however, may find themselves in legal limbo as states pass conflicting laws regarding same-sex couples. For example, since marriage for same-sex couples became legal in Massachusetts, many companies in Massachusetts are now requiring that same-sex couples be married in order to obtain benefits. (UnMarried SaMe-Sex Couples Lose Health Benefits in Mass.). "The businesses say that if gays and lesbians can now be legally married, then they should no longer be entitled to special health benefits not available to unmarried, opposite-sex couples." (Id.) Companies argue that if homosexuals have the same options as heterosexuals to marry, then the same rules should be applied. (Id.)

Another issue in Massachusetts is whether to give same-sex spouses the benefits provided by company policy or state law - with the exception of where state law is preempted by ERISA, a federal statute. (The Ripple Effect of SaMe-Sex Marriages in Massachusetts). Moreover, while Massachusetts employers are attempting to provide the same health and life insurance coverage for same-sex spouses as for heterosexual spouses, the Defense of Marriage Act ("DOMA") prohibits Massachusetts from giving same-sex couples certain benefits. (Id.) For example, because of DOMA, the federal benefit allowing employers and employees to pay health insurance premiums with pre-tax dollars is not available to same-sex spouses. (Id.). As a result, DOMA is federal legislation that prohibits the United States government from applying 1,138 rights and responsibilities related to marriage of same-sex couples and does not compel any state to recognize same-sex rights legitimate in other jurisdictions. (An Overview of Federal Rights and Protections Granted to Married Couples). Employers are now struggling to revamp their payroll systems to treat same-sex spouses as spouses on the state level and unmarried partners on the federal level. …