Employee benefits in the United States are, in large part, dominated by the Employee Retirement Income Security Act of 1974 (ERISA), a federal statute.1 This Note analyzes how to interpret the terms of a plan governed by ERISA that provides benefits to employees' spouses where employees have legally married same-sex spouses in Massachusetts.2 This Note first discusses the background to both ERISA and the Defense of Marriage Act (DOMA). Part III examines possible interpretations courts could use when deciding whether an employer-created ERISA plan that references legal marriage3 includes same-sex marriage. Two views are possible, a broad view and a narrow view. Under the broad view, no same-sex marriage could be considered a legal marriage under an employer-created ERISA plan that references legal marriage. This is because the ERISA plan, under this view, falls within the category of federal provisions under DOMA. DOMA's provisions state a definition of marriage that excludes same-sex marriage when interpreting congressional acts and federal agency and bureau decisions.4
Under the narrow view, the determination of whether a same-sex marriage qualifies as a legal marriage for the purposes of an employer-created ERISA plan depends on the underlying state law. In states that have a statute or constitutional amendment that limits marriage to a union between a woman and a man, a court determining whether a samesex marriage qualified as a legal marriage under the ERISA plan would likely exclude the same-sex couple from receiving benefits. In states that do not have a statute or constitutional amendment that limits marriage, a court determining whether a same-sex marriage qualified as a legal marriage under the ERISA plan would look to three things. The court would look at the state's public policy, the full faith and credit provision of the Constitution, and DOMA to determine whether that state would recognize the marriage. In states that have mini-DOMA provisions, a court determining whether a same-sex marriage qualified as a legal marriage under the ERISA plan will not recognize the samesex marriage because of the mini-DOMA provision.
This Note recommends that courts looking at this issue adopt the narrow view of ERISA for purposes of DOMA and perform a state-by-state analysis to determine whether a same-sex marriage is a legal marriage. This Note recommends this view for three main reasons. First, this view allows each state to determine for itself whether a same-sex marriage should be recognized as a legal marriage, an area that has traditionally been under state control.5 second, this view is consistent with the purpose of DOMA because the drafters intended to allow each state to make a determination on the issue of same-sex marriage.6 Finally, this narrow view also correctly interprets the federal DOMA provision not to cover an employer-created ERISA plan.7
This Note also recommends what employers should do in the interim, before a court decides this issue. This Note recommends that employers should review their policies and think about how they want to handle this sensitive issue. Employers should assume courts will adopt the narrow view of DOMA and should therefore look to underlying state law for guidance.
A. Same-Sex Marriage in the United States
Same-sex marriage is a current topic of discussion in the United States. Both political candidates in the 2004 presidential election took a stand on the issue.8 Additionally, the Massachusetts judicial system recently dealt with the issue of same-sex marriage. The decision of the Massachusetts Supreme Court is the first and only court decision that recognized same-sex marriage as legal under a state constitution. On November 18, 2003, the Massachusetts Supreme Court in Goodridge v. Department of Public Health9 looked at the issue of "whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. …