same-sex marriage

The Supreme Court’s decision last week in Obergefell v. Hodges is big news: it held that the 14th Amendment requires states to license same-sex marriages and to recognize lawful out-of-state same-sex marriages, and thus legalized same-sex marriage throughout the country.  In a final section that begins with a philosopher’s take — “No union is more profound than marriage…”  — and ends with a jurist’s — “It is so ordered.” — the Court captured the attention of SCOTUS junkies and the rest of the country alike, leading to an outpouring of celebrations, headlines, social commentary and musing about the future.

Obergefell clearly is of cultural importance and has personal significance for many people, but what does it mean for private sector employers and their employee benefit plans?  Surprisingly little.  Private sector employee benefits are governed primarily by federal law, which had its watershed moment on this issue in 2013 when the Supreme Court required the federal government to recognize same-sex marriage in United States v. Windsor.Continue Reading Marriage Equality Decision Is Big News (But May Have Little Impact on Private Sector Employee Benefit Plans)

A complaint filed this month against FedEx Corporation and its pension plan asks a court to apply the Supreme Court’s decision in Windsor v. United States retroactively.  The case is Schuett v. FedEx Corporation.  The plaintiff is the surviving same-sex spouse of a FedEx pension plan participant who died six days before the Court issued its opinion in Windsor.

Case background.  The participant and the plaintiff began living as a couple in 1983.  The participant worked as a FedEx delivery driver for 26 years while the plaintiff stayed home to care for the couple’s two children.  The participant was diagnosed with cancer and learned on June 3, 2013, that her condition was terminal.  Already registered as domestic partners in California, the couple held a bedside wedding ceremony June 19, 2013, and the participant died the following day.

Six days later, the Supreme Court held in Windsor that the U.S. Constitution requires federal law to recognize state-sanctioned same-sex marriages.  The Court overturned section 3 of the Defense of Marriage Act (“DOMA”), which defined marriage under federal law to exclude same-sex couples.  The same day, the Court decided Hollingsworth v. Perry, a procedural ruling that effectively reinstated same-sex marriage in California.  The plaintiff obtained a marriage certificate and a judicial order declaring the couple’s marriage legally valid as of June 19, 2013.
Continue Reading Lawsuit by Surviving Same-Sex Spouse Raises Windsor Retroactivity Question

When the Supreme Court held in United States v. Windsor last June that federal law recognizes same-sex marriages, the question arose whether this ruling would apply to tax-qualified retirement plans retroactively.  Last week, the IRS answered that question, in part. For tax-qualification purposes, plans must generally recognize the Windsor decision as of the date of the decision (June 26, 2013).  Plans could also voluntarily recognize the effect of the decision as of an earlier date.  The IRS, however, left open several questions, including how Windsor would apply with respect to a claim by a participant or beneficiary for retroactive benefits.  Below are highlights of the recent IRS guidance (consisting of Notice 2014-19 and FAQs).
Continue Reading Will Windsor Apply Retroactively to Retirement Plans? IRS Provides Some (But Not All) the Answers

The Second Circuit recently held that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional.  That section prohibits recognizing same sex marriages under federal law.  The court’s decision in Windsor v. United States is the second by a U.S. Circuit Court to find that this portion of DOMA violates the Constitution’s Equal Protection Clause.  In May, the First Circuit also found DOMA to be unconstitutional in Massachusetts v. U.S. Dep’t of HHS.  The question of whether DOMA is constitutional could have a significant impact on employee benefit plans.

The two Circuit Court cases differ in one key respect:  the Second Circuit applied “intermediate scrutiny” while the First Circuit reviewed DOMA under an enhanced rational basis standard, under which the court “scrutinize[d] with care” and applied “closer than usual scrutiny.”  Notably, the Justice Department is seeking Supreme Court review of the Second Circuit’s decision.  Even before the Second Circuit ruled, the Justice Department had filed a petition for a “writ of certiorari before judgment filed.”  Following the Second Circuit’s decision, the Justice Department filed a supplemental brief urging the Court to grant its petition in that case and hold the petition in the First Circuit decision.  Earlier this week, the Supreme Court scheduled petitions for certiorari in the First Circuit and Second Circuit cases (and several other same-sex marriage cases) to be considered during a conference on November 20, 2012.
Continue Reading DOMA Held Unconstitutional by Second Circuit, Increasing Likelihood of Supreme Court Review