The Respect for Marriage Act would preserve the company benefits of same-sex couples. The legislation, which passed the US Senate on November 29, was inspired by concerns that the US Supreme Court might reconsider its landmark same-sex marriage decision.
As same-sex marriages began taking place over the weekend in New York state (click here for more information on the benefit implications of that development), another development that could have even more far-ranging implications for benefit plans also occurred last week. Specifically, last week the Senate Judiciary Committee held hearings on a bill entitled the “Respect for Marriage Act” which would repeal the Defense of Marriage Act’s (DOMA) definition of marriage for purposes of federal law as a union between one man and one woman. If the Respect for Marriage Act were enacted, it would — among other things — significantly complicate the administration of benefit plans on a multitude of issues such income tax inclusion, COBRA, death benefits, etc. (For more information, click here). There could also be significant confusion regarding whether a same-sex marriage entered into in one state can or must be recognized by another state; the federal DOMA inspired many states to enact their own mini-DOMA statutes, the constitutionality of which might be in question if the Respect for Marriage Act were enacted.
Legislative prospects for the Respect for Marriage Act are difficult to predict. However, consistent with the Administration’s position to stop enforcing portions of DOMA (click here for more information), the President has indicated his willingness to sign the Respect for Marriage Act if presented to him.
The Illinois Religious Freedom Protection and Civil Union Act, which legalizes civil unions for same-sex and opposite-sex partners, takes effect on June 1, 2011. The law entitles civil union partners to all of the legal rights and obligations that opposite-sex spouses have under Illinois state law by requiring that a party to a civil union be included in any use of the terms “spouse,” “family,” “immediate family,” “dependent,” “next of kin” or other terms that denote a spousal relationship throughout Illinois law. Illinois will recognize as a civil union any same-sex marriage, civil union or substantially similar legal relationship entered into in other states.
The application of the Illinois law is complicated by the intersection of federal and state law. The federal Defense of Marriage Act (DOMA) continues to define a “spouse” as a husband or wife of the opposite sex. A civil union in Illinois will not, therefore, be a “marriage” under DOMA. As a result of DOMA, parties to an Illinois civil union will not be entitled to federal law benefits applicable to opposite-sex spouses (e.g., qualified joint and survivor annuity (QJSA) and qualified pre-retirement survivor annuity (QPSA) benefits under tax qualified retirement plans, COBRA coverage, etc.). Note, however, that on March 16, 2011, both the U.S. House and Senate introduced legislation to repeal DOMA (The Respect for Marriage Act of 2011), and to tie federal law marital status to an individual’s marital status in the State where the individual entered into the marriage. The Respect for Marriage Act bills currently rest with the Judiciary Committees of the House and Senate, and the next step for each (e.g., Committee vote, hearings, Senate and/or House floor vote) is unclear.
Because the new Illinois civil union law may impact areas such as employee benefit plans, employer leave policies (including the Illinois Family Military Leave Act) and any other employer-provided benefits covering spouses, employers should ensure such programs are in compliance with the June 1, 2011 law change. More information on the employee benefit plan implications of the legalization of civil unions in Illinois can be found here, while the impact on Religious Organizations benefits is discussed here.
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