Employers - The Allowance Of Same-Sex Marriages Affects You Too!

March 19, 2004

On November 18, 2003 the Massachusetts Supreme Judicial Court ruled that gay and lesbian couples have the right to civil marriage in Massachusetts. The ruling in Goodridge v. Department of Public Health is the first of its kind in this country by a state high court.

As of May 17, 2004, same-sex couples who marry shall be afforded all the rights and protections afforded a heterosexual couple in Massachusetts. For employers, this landmark ruling must be complied with in order to avoid claims of discrimination and violations of state law.

Massachusetts Employers will be required to provide the same benefits to its employees who are same-sex spouses as the employer affords to its opposite-sex spouses. The law does not require an employer to provide any benefits to any employee, however, if the employer provides benefits to its opposite-sex spouses then the same benefits must be afforded to all its employees regardless of the sex of the parties to the marriage.

Ironically, the Federal Defense of Marriage Act does not recognize a marriage between anyone other than between a man and a woman and therefore, does not entitle same-sex couples to the same federal tax and federal employment benefits of opposite-sex couples. Employers need only recognize same-sex couples as domestic partners for purposes of the federal benefits.

Under federal law, domestic partners are not treated like married couples. The taxation of certain benefits is treated differently for domestic partners with a tax of the benefits afforded to domestic partners that are not taxable benefits when received by opposite-sex partners. Another example is COBRA, the entitlement to which is not the same for a domestic partner as it is for an opposite-sex spouse. For the Massachusetts employer who currently provides domestic partner benefits, the impact of same-sex marriages will not be significant. For those employers not providing such benefits presently, they will have to do so by May 17.

Other states have battled with the issue of same-sex marriages and civil unions and the application of benefits to its state residents under the different systems. In 2000, Vermont passed the first civil-union law in the United States. The issue on a state level is whether or not a civil union translates to automatically requiring an employer to treat a same-sex partner of a civil union the same as an opposite-sex partner. The answer is "it depends." Unlike marriage where it is clear on the state level that a same-sex marriage automatically requires an employer to provide the same rights and benefits to its same-sex spouses as it provides to its opposite-sex spouses, the Legislature shall decide the rights and protections afforded to partners of a civil union. Again, regardless of the distinction of same-sex marriage or civil union, neither will be recognized on the federal level.

The lower courts in Hawaii and Alaska both found the limitation of marriage to only a man and woman unconstitutional under their individual state constitutions. However, before the Supreme Court in Hawaii decided the matter, the voters of Hawaii approved an amendment to their state constitution limiting marriage to a man and a woman. Alaska followed suit.

Vermont determined that its civil union should have all the rights and benefits of a civil marriage but that may not be the case for all states. In January 2004, the New Jersey legislature passed a domestic partnership law that grants same-sex couples who register many, but not all, legal rights and benefits granted married couples. Effective January 2005, California's domestic partnership law will give domestic partnerships rights nearly equivalent to those afforded to married couples.

What does it all mean for employers? For those employers of other states, they should consult with counsel to determine how the Legislature has defined its responsibilities to its employees who are same-sex partners. For the employer in Massachusetts, the translation is that by May 17 you must provide the same benefits to all your employees. But for all employers, regardless of the distinction of same-sex marriage or civil union in all states, for now, neither will be recognized on the federal level.

Julie A. Dialessi-Lafley, Esquire is a multi-faceted associate with Bacon & Wilson, P.C. She is experienced in all aspects of corporate, business, real estate and general legal matters. She can be reached at 413-781-0560 or jdialessi-lafley@bacon-wilson.com

by: Julie A. Dialessi-Lafley, Esq.

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March 2004