Hardly the Same: State and Federal Laws Are No Perfect Match for Same-Sex Couples

By Hauser, Susan G. | Workforce Management, September 2011 | Go to article overview

Hardly the Same: State and Federal Laws Are No Perfect Match for Same-Sex Couples


Hauser, Susan G., Workforce Management


When New York's Marriage Equality Act went into effect in July, same-sex couples lined up in their wedding finery at the city clerk's office. The marriage law was cause for great celebration, especially for gay and lesbian couples working in New York, where state law already recognized same-sex marriages that were legal in five other states, as well as in the District of Columbia and several other countries, including Canada.

But to many couples, the law was more a symbolic victory than anything else. Some couples hoping for legal recognition have pledged to hold off on marriage until both state and federal laws are in sync.

"These marriages, in whichever state, are what I call 'feel-good marriages,' " longtime gay activist Larry Kramer said in a statement he released to the New York Times after the law was passed. "Most straight people who are congratulating us so effusively don't understand that these marriages share none of their federal benefits and entitlements, the right to inherit without punishing taxation, the right for our joint incomes not to be taxed so hideously high, the right to share insurances. ... So why do we continue to get so excited when so few worthless crumbs are thrown our way?"

But change could come at the federal level. The Defense of Marriage Act, or DOMA, signed into law by President Bill Clinton on Sept. 21, 1996, defines marriage for all federal purposes as being between one man and one woman. Thus, on the federal level, same-sex marriage simply does not exist, although the law is being challenged on many fronts, notably through the Respect for Marriage Act. Essentially a repeal of DOMA, it was introduced in both the House and Senate this March. Senate hearings began in July. If DOMA is thrown out, the definition of marriage would be left to the states.

In the meantime, employers must deal with the growing number of state gay marriage and civil union laws. When New York legalized same-sex marriage, some businesses were ready with changes in their employee benefits programs. Others, however, might be encountering some surprises, or at least a few bumps along the road, while attempting to adjust to the differences in state and national laws.

"The incongruity between state and federal law regarding the definition of 'spouse' has the potential for creating confusion among plan participants and costly administrative errors," writes Christine Lutgens, co-chairman of the Employee Benefits and Executive Compensation Department at the New York City law firm Kramer Levin.

After the New York law was passed, several companies, including IBM Corp. and Raytheon Co., announced that the domestic partner benefits they previously offered same-sex couples would become null and void because legal marriage was now available to them. Their definition of domestic partners labeled them as couples who were denied the legal opportunity to marry. With the new law, the companies would be requiring domestic partners to marry, after a grace period, or forfeit their domestic partner benefits. IBM and Raytheon declined to comment.

Corning Inc., which has provided benefits to same-sex partners of employees since 2002, also will now require its New York workers to marry by Jan. 1, 2013, to keep the benefits. In a written statement, it said that: "Since its inception, the policy has stated that, in U.S. states where legal marriage for same-sex couples is permitted, couples must be married for an employee's partner to be eligible for coverage."

Requiring same-sex couples to marry to retain their benefits is short-sighted, says Chris Crespo, Lesbian, Gay, Bisexual, Transgender and Allies Inclusiveness strategy leader at Ernst & Young. She says a conversation on the same topic was held several years ago at Ernst & Young. The firm decided to keep the domestic partner label and benefits, established by the company in 2002, even though foreign- and state-sanctioned same-sex marriages were honored within the company. …

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