New Challenges to the Federal Defense of Marriage Act Filed in Federal Courts in Connecticut and New York

Todd Solomon
January 10, 2011 — 2,032 views  
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The federal Defense of Marriage Act ("DOMA") is the controversial law at the focus of the national debate over the legalization of same-sex marriage. The DOMA provides for all purposes of federal law, the word "marriage" means "only a legal union between one man and one woman as husband and wife" and the word "spouse" refers "only to a person of the opposite-sex who is a husband or wife."  In addition, the DOMA stipulates that no state shall be required to recognize a same-sex relationship that is considered a legal marriage in another state.

The federal Defense of Marriage Act ("DOMA") is the controversial law at the focus of the national debate over the legalization of same-sex marriage. The DOMA provides for all purposes of federal law, the word "marriage" means "only a legal union between one man and one woman as husband and wife" and the word "spouse" refers "only to a person of the opposite-sex who is a husband or wife."  In addition, the DOMA stipulates that no state shall be required to recognize a same-sex relationship that is considered a legal marriage in another state.

On November 9, 2010, two new challenges to the constitutionality of the DOMA were filed in the federal courts in Connecticut and New York.  The challenges have important similarities and key differences to the prior challenge in Gill.

Connecticut

GLAD, which successfully challenged the constitutionality of the DOMA in Gill, filed another lawsuit, Pedersen. v. Office of Personnel Management, in the U.S. District Court for the District of Connecticut on November 9, 2010.  The complaint was filed on behalf of five same-sex couples legally married in Connecticut, New Hampshire, and Vermont and a surviving spouse of a same-sex marriage in Connecticut.  Each of the plaintiffs had applied for certain rights and protections that are extended to opposite-sex spouses under federal law, but were denied these rights and protections because the DOMA's definition of "spouse" is restricted to opposite-sex spouses.  The complaint challenges the constitutionality of the DOMA's denial of same-sex marriages in connection with benefit programs for federal employees and retirees, Social Security benefits, survivor benefits under the Employee Retirement Income Security Act ("ERISA"), work leave to care for a spouse under the Family Medical Leave Act (the "FMLA"), and state retiree health insurance benefits that are controlled by federal tax law.  According to GLAD, several plaintiffs who have paid additional federal income taxes because they cannot file a joint federal tax return as a married couple will join the lawsuit once they are officially turned down for refunds from the IRS.

GLAD's argument against the constitutionality of the federal DOMA in Pedersen is the same argument that it successfully used in Gill.  GLAD filed Gill on behalf of eight same-sex couples who are legally married in Massachusetts and three surviving spouses of same-sex marriages performed in the state.  Gill focused on the right to Social Security survivor payments, spousal benefits under federal income tax laws, and employee benefits provided to federal workers and retirees.  GLAD argued in Gill that the federal DOMA violates the guarantee of equal protection of the laws under the Fifth Amendment to the United States Constitution by creating two classes of marriage - one class of opposite-sex couples who are entitled to the rights and protections of marriage under federal law and another class of same-sex couples who are not.  Because the power to regulate marital status has traditionally been held by the states, GLAD argued that the DOMA is a "radical departure" from the division of powers between the states and federal government since there is no adequate justification for the DOMA's prohibition on recognizing marriages that are otherwise valid under state laws.  The Massachusetts court ruled in favor of GLAD in July 2010, after it found that the government's justifications for the DOMA failed to establish a rational relationship between prohibiting federal recognition of same-sex marriages and a legitimate government objective, thereby denying same-sex couples equal protection of the laws as guaranteed by the Fifth Amendment.

Although advancing the same arguments against the DOMA that were used in Gill, Pedersen differs from Gill in several important respects.  First, while Gill focused strictly on rights and protections that same-sex spouses were denied as a result of federal agencies and programs applying the DOMA definition of spouse, Pedersen also addresses discriminatory treatment of same-sex spouses as a result of states and corporations applying the DOMA.  For example, corporations with defined benefit pension plans are required by federal law to offer a qualified preretirement survivor annuity ("QPSA") to spouses of vested participants who die prior to commencing their benefits from the plan.  Pedersen challenges the DOMA's application to these qualified retirement plans, which serves to deny the QPSA benefit to a surviving same-sex spouse even when the same-sex couple is legally married under state law.  A second significant difference between Gill and Pedersen is that Pedersen involves plaintiffs from three additional states where same-sex marriage has been legalized.  While the appeal in Gill is now before the U.S. Court of Appeals for the First Circuit, an appeal in Pedersen would reach the U.S. Court of Appeals for the Second Circuit.  Together, these two circuits cover all of the states where same-sex marriage has been legalized, except for Iowa and the District of Columbia.

New York

A second recent challenge to the federal DOMA was filed on November 9, 2010 in the U.S. District Court for the Southern District of New York.  That complaint, Windsor v. United States of America, was filed by the American Civil Liberties Union ("ACLU"), the New York Civil Liberties Union, and pro bono legal counsel on behalf of the surviving spouse of a same-sex couple who had been together for 44 years and had married in Toronto in 2007.  The couple lived in New York where their same-sex marriage was recognized for all purposes of state law.  After her spouse died last year, the plaintiff was forced to pay $350,000 in federal estate taxes that she would not have had to pay if she had been married to an opposite-sex spouse.  Due to the application of the DOMA, the plaintiff was unable to claim the estate tax marital deduction that is otherwise available when the surviving spouse is of the opposite-sex.  The lawsuit seeks to have the DOMA declared unconstitutional and to obtain a refund of the federal estate tax that the plaintiff was forced to pay when her spouse died. 

Like Pedersen, the plaintiffs in Windsor are similarly relying on the argument advanced by GLAD in Gill as a basis for its challenge to the DOMA.  The plaintiffs argue that the DOMA violates the Equal Protection Clause of the Fifth Amendment of the United States Constitution because it recognizes opposite-sex marriages, but not those of same-sex couples, despite the fact that New York state law treats all marriages the same.


Until the DOMA is repealed, same-sex marriages will continue to be disregarded for purposes of federal law, including federal laws governing employee benefits.  This means that employers are not obligated to extend benefits to employees' same-sex spouses or partners, even if benefits are extended to employees' opposite-sex spouses.  Repeal of the DOMA would presumably require benefit plans to defer to state law determinations of otherwise valid marriages.  Benefit plans would then likely be required to treat employees' same-sex and opposite-sex spouses equally for purposes of the benefits that the employer extends to spouses.  Employers should stay informed of these cases and other developments with respect to same-sex union laws in order to understand the potential impact that this evolving area of law may have on the benefits that the employer may be permitted or required to offer to its employees' same-sex spouses and partners.

Todd A. Solomon is a partner in the Employee Benefits Department of McDermott Will & Emery's Chicago office. He is the author of the third, fourth and fifth editions of Domestic Partner Benefits: An Employer's Guide, and was the co-author of the book's first and second editions.

Todd Solomon

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Todd A. Solomon is a partner in the law firm of McDermott Will & Emery LLP based in the Firmís Chicago office. As a member of the Employee Benefits Department, Toddís practice is concentrated primarily on designing, amending, and administering pension plans, profit sharing plans, 401(k) plans, employee stock ownership plans, 403(b) plans, and nonqualified deferred compensation arrangements. He also counsels privately and publicly-held corporations and tax-exempt entities regarding fiduciary issues under ERISA, employee benefits issues involved in corporate transactions, executive compensation matters, and the implementation of benefit programs for domestic partners of employees. A portion of his practice consists of advising clients on fiduciary and plan investment matters. Todd has experience counseling plan fiduciaries with respect to investment policies, alternative investments (e.g., hedge funds, limited partnerships, real estate), prohibited transaction issues, investment management agreements, and payment of expenses from plan assets.