Obergefell v. Kasich and Cozen O'Connor v. Tobits may reflect a growing trend of courts and other bodies to recognize same-sex marriages validly celebrated elsewhere even if the couple's current state of residence does not recognize such marriages. Pending further guidance, employers should begin discussing plan amendments and administrative procedures that may be necessary to clarify benefit eligibility for same-sex spouses and partners.
As plan sponsors continue to wait for additional guidance interpreting the Supreme Court of the United States' recent ruling in United States v. Windsor that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, two recent federal court decisions have recognized same-sex spousal benefits for couples residing in states that do not currently permit same-sex marriage.
On July 22, 2013, a federal district court in Ohio in Obergefell v. Kasich adopted the "state of celebration" approach to recognizing same-sex marriages, finding that Ohio's "mini-DOMA" statute likely would violate the U.S. Constitution. In this case, two male Ohio residents, John Arthur and James Obergefell, had been living together for more than 20 years and had traveled to Maryland to enter into a legal same-sex marriage. Arthur was in hospice care and was expected to die soon. Because Ohio law specifically refuses to recognize same-sex marriages performed elsewhere, Arthur's death record would have listed his "marital status at time of death" as "unmarried" and would not record his spouse as the "surviving spouse."
The plaintiffs sought an injunctive order declaring unconstitutional the Ohio laws forbidding recognition of legal same-sex marriages from other states and requiring the Registrar of Ohio death certificates to record Arthur as "married" and to record Obergefell as Arthur's "surviving spouse." According to the Obergefell court,
Throughout Ohio's history, Ohio law has been clear: a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized. . . . How then can Ohio, especially given the historical status of Ohio law, single out same sex marriages as ones it will not recognize? The short answer is that Ohio cannot . . . at least not under the circumstances here. . . . By treating lawful same sex marriages differently than it treats lawful opposite sex marriages (e.g., marriages of first cousins and marriages of minors), Ohio law, as applied to these Plaintiffs, likely violates the United States Constitution which guarantees that "No State shall make or enforce any law which shall . . . deny to any person within its jurisdiction equal protection of the laws."
As a result, the court ordered the local Ohio Registrar of death certificates not to accept for recording a death certificate for Arthur that does not record his status as "married" and/or does not record Obergefell as Arthur's "surviving spouse."
On July 29, 2013, in Cozen O'Connor v. Tobits, a federal district court in Pennsylvania ruled that spousal death benefits in an employer's profit-sharing plan were payable to a deceased employee's surviving same-sex spouse rather than to the employee's parents. In Tobits, the deceased employee's parents argued that DOMA prevented the plan from recognizing the deceased employee's same-sex spouse despite the fact that the couple legally married in Toronto, Canada, in 2006. In light of Windsor, the Tobits court found that "the term 'Spouse' is no longer unconstitutionally restricted to members of the opposite sex, but now rightfully includes those same-sex spouses in 'otherwise valid marriages.'" In reaching this conclusion, the court relied on the laws of Illinois, where the couple resided at the time of the employee's death, which recognize a valid same-sex marriage performed in another jurisdiction as a civil union in Illinois. Accordingly, it is not clear whether the court would have reached the same conclusion had the same-sex spouses lived in a state such as Florida or Michigan, where same-sex marriage is not recognized for any purpose. Notably, the Tobits court ignored the plan's choice of law provision indicating that Pennsylvania law would apply to the extent not preempted by ERISA. The court found no reason to look at Pennsylvania law because it was entirely preempted by ERISA.
These cases may reflect a growing trend of courts and other bodies to recognize—at least for some purposes—same-sex marriages validly celebrated elsewhere even if the couple's current state of residence does not recognize such marriages. Notably, the Obergefell case provided such recognition where the state of residence provides no recognition of the relationship, and the Tobits case did so where the state of residence merely recognizes the relationship as a civil union, which is spousal equivalent under state law but is not technically a "spousal" relationship.
Despite the potential trend reflected in these recent rulings, until the federal government issues guidance, it is unclear how legally married same-sex couples who reside in a state where same-sex marriage is not recognized should be treated for purposes of federal law, including spousal benefits under pension plans and the taxation of medical, dental and vision benefits. Employers that do not clearly define "spouse" and "dependent" under their retirement and welfare plans are vulnerable to challenges by same-sex spouses and partners if the employer denies benefits to such spouses and partners.
Employers would be well served to review the use of "spouse" in each of their benefit programs to determine whether they intend or are required to cover same-sex spouses and partners. Pending further guidance, employers should begin discussing plan amendments and administrative procedures that may be necessary to clarify benefit eligibility for same-sex spouses and partners.
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