Same-sex marriage and benefits for same-sex partners are issues that appear to be gaining momentum. A number of state legislatures and state supreme courts have recently addressed these issues and same-sex marriage is now legal in six states. President Barack Obama also recently extended benefits to same-sex partners of federal employees, promising that the extension was “a historic step towards the changes we seek.”
The Presidential Memorandum
On June 17, 2009, President Obama signed a Presidential Memorandum outlining benefits that could be extended to same-sex partners of federal employees in civil and foreign service under existing federal laws and statutes. The memorandum asks the Director of the Office of Personnel Management (OPM) and the Secretary of State to extend such benefits. It also requests that the heads of all other federal agencies and executive branch departments conduct their own internal reviews to determine whether other benefits could also be extended to their employees’ domestic partners.
According to the memorandum, civil service employees can add their same-sex partners to the long-term care insurance program and use their sick leave to take care of their same-sex partners and non-biological, non-adopted children. Additionally, domestic partners of foreign service employees will be counted as family for medical care and housing purposes.
President Obama and Gay Rights
The memorandum is the most significant action President Obama has taken on gay rights so far in his presidency and it arrives after some gay rights groups have criticized him for what they perceive as failure to live up to campaign promises that he made the gay community. Most recently, the administration has been criticized for filing a legal brief supporting the constitutionality of the Defense of Marriage Act (DOMA), a law that forbids federal recognition of gay marriage and allows states not to recognize same-sex marriages from other states. (In response to the gay community’s outrage over the brief, a White House representative noted that it is “standard practice for the administration to back laws that are challenged in court,” even if they do not agree with them.)
Several gay activists groups have also been critical of the memorandum because same-sex partners of federal employees will still not be entitled to receive health insurance or retirement benefits. However, President Obama addressed these concerns in his official statement, stating that the memorandum is just the beginning and that he is committed to working with Congress to repeal DOMA. He asserted that DOMA was “discriminatory” and “interferes with states’ rights.”
President Obama also noted how private companies are already free to provide same-sex benefits. He stated, “Hundreds of Fortune 500 companies already offer such benefits, not only because it’s the right thing to do, but because they recognize that it helps them compete for and retain the best possible talent — and we need top talent serving their country right now more than ever.”
More Change to Come?
There have been plenty of signs that the memorandum is just the beginning of President Obama’s plans for gay rights and he certainly reinforced this position at the memorandum signing ceremony, noting that the memorandum was “only one step.”  He also mentioned his support of the Domestic Partners Benefits and Obligation Act of 2009, which is legislation that has been introduced in both Houses of Congress and would extend the same benefits to the same-sex partners of federal employees that opposite-sex spouses of federal employees already receive.
Several states are already ahead of the federal government on the issue. Currently, same-sex marriage has been legalized in Massachusetts (2004), Connecticut (2008), Iowa (2009), Vermont (effective 9/1/2009), Maine (effective September 2009, pending a referendum), and New Hampshire (effective 1/1/2010).
New York recognizes same-sex marriages that were conducted in other states and, on April 6, 2009, legislation was introduced to legalize same-sex marriage in the state, as well. On April 7, 2009, the Washington D.C. Council unanimously passed a bill that recognizes same-sex marriages performed in other jurisdictions. The D.C. law took effect July 7. Many states also provide at least some state-level spousal rights to same-sex partners, including California, Colorado, Hawaii, Maryland, Nevada, Oregon, Washington, Washington D.C., and New Jersey. In fact, only Rhode Island and New Mexico currently have no laws specifically prohibiting or recognizing same-sex marriages or similar unions.
What Does this Mean for You?
Under current federal law (DOMA), same-sex partners of employees are not entitled to certain benefits. This means they do not enjoy the rights or benefits under federal programs, including ERISA benefit plans, the Internal Revenue Code (e.g. 401(k) plans and health savings accounts), FMLA, COBRA, social security benefits, and survivor annuity benefits.
However, although federal law may not require you to offer benefits to same-sex partners of your employees, it doesn’t necessarily mean you are off the hook. States that recognize same-sex marriage often compel private employers to provide benefits to the same-sex spouses of their employees. States that recognize legal unions or domestic partnerships may also require private employers to offer benefits to their employees’ same-sex partners in certain situations. Additionally, if your insurance policies are issued from states that recognize same-sex marriage or domestic partnerships, some insurers may require you to cover same-sex partners in order to comply with the insurance laws of that state.
Bottom Line
Although the Presidential Memorandum does not affect private employers, it is further evidence of the rising trend of extending benefits to same-sex partners of employees. It may be a good time to evaluate your workforce and review your policies and benefit plans to make sure you are in compliance with all the states in which you have employees. Even if you don’t have employees in a state that requires you to offer benefits to same-sex partners, you still may want to review your policies and procedures so you will be prepared to deal with the issue when it arises.