A nice summary from the Star Tribune on the employee-benefit issues companies and individuals face surrounding SSM.
Same-sex marriage: A workplace issue
H.J. Cummins, Star Tribune
June 12, 2004Never mind what it means for religion or politics. Same-sex marriage is a huge employee-benefit issue.
With hundreds of gay and lesbian couples saying “I do” in Boston — and briefly in San Francisco, Portland and New Paltz, N.Y. — employers are trying to figure out what these new marriages have set in motion.
For Minnesota companies with offices in Massachusetts, the issue is upon them. For some others, it’s probably only a matter of time before someone comes back from Massachusetts or Ontario — which both allow same-sex marriage — and asks that the companion be recognized as spouse in a benefits plan.
For now, employers looking for guidance encounter a crazy quilt of laws, tax regulations and company policies, some of which can seem contradictory.
Experts point to a number of reasons for the confusion:
- Most states, including Minnesota, limit marriage to the union of a man and a woman, with some going further through Defense of Marriage Acts to explicitly exclude the recognitions of same-sex spouses.
- At the same time, most states, including Minnesota, broadly outlaw discrimination based on sexual orientation.
- Meanwhile, some cities, including Minneapolis, require government contractors to offer the same benefits to same-sex couples that they offer married heterosexuals. But federal law, including the federal Defense of Marriage Act, limits federally regulated benefits — including the Family Medical Leave Act, pension rights and Social Security survivor benefits — to man-and-woman couples.
All this makes for some jumbled legal and tax situations.
For example, gay couples in Massachusetts must keep filing their federal income tax returns as individuals, but they may now file their state returns as married couples. If they share one employer’s health coverage, the IRS will tax the value of that because the federal agency still sees it as a taxable domestic-partner benefit. That means employers still must pay all the usual payroll taxes on that benefit, including Social Security and Medicare. But the couple won’t owe state income tax on the benefit because Massachusetts law now views it as family coverage, which is not taxable.
“There will be a lot of strange circumstances coming up in the next few years,” said Phil Duran, an attorney at OutFront Minnesota, a gay and lesbian advocacy group.
Despite the confusion, employers can be guided by some simple rules, said Rick Nelson, head of the employee benefits group at the Faegre & Benson law firm in Minneapolis. Federal laws cover most major employee benefits, so they will apply in most cases.
Nelson said employers might also want to define the word “spouse” in all their company plans and policies — which must match the federal definition of husband or wife, “so if there’s any ambiguity between it and state law you don’t find yourself in a fight with with your employees.”
Beyond that, “a lot of companies are taking a wait-and-see attitude,” Nelson said. “They’re saying, ‘It’s such a mess out there.’”
Since Massachusetts last month became the first state to allow same-sex marriage, gay and lesbian couples from across the country have rushed there to say their vows.
It’s not clear whether other states will recognize those marriages. States generally honor each others’ laws, but can refuse if those laws go against their public policy and many states have hurried to specifically bar gay marriages.
It’s not even clear whether Massachusetts will recognize gay marriages of non-state residents performed there, after Gov. Mitt Romney invoked a 1913 state law — originally meant to prevent interracial marriages — that says no one can go to Massachusetts to enter into a marriage that would be barred in their home state.
Those uncertainties led Andy Ansell and Lonny McLaughlin, a Minneapolis couple, to give up on their hope of being married in Massachusetts. They plan to be wed this summer in Toronto.
Ansell is health education coordinator at the Minnesota AIDS Project. McLaughlin works for San Francisco-based Landmark Education, a company that runs personal-development courses. The men, together for five years, want to marry for emotional and symbolic reasons, even if Minnesota won’t recognize their union.
“Marriage is a very public declaration of two people’s intention to spend their lives together,” Ansell said. “Then all your friends and family know you as a married couple, and they’re pulling for you as a couple.”
Practical considerations, such as getting spousal benefits from an employer, are also a factor in their decision. For now, each has health insurance through his employer. But they worry that a day will come when one will be unemployed, or sick enough that his partner will want a leave to care for him.
“It’s a very big concern for me,” Ansell said. “I’ve been HIV positive for 17 years. So, those types of legal protections are on my mind: issues of family [medical] leave and inheritance.”
Several benefits experts expect same-sex marriages to slowly gain acceptance, much as domestic-partner benefits spread through the ’90s.
Oregon could become the next state to legalize such marriages, said Ken McDonnell, an analyst at the Employee Benefit Research Institute (EBRI) in Washington, D.C.
He also believes the federal Defense of Marriage Act will not withstand a court challenge.
That’s why some people in many states want to amend state constitutions to define marriage as solely between a man and a woman. Such a proposal in Minnesota stalled this year in the Legislature, but polls show it has wide support. A Star Tribune poll last April found that 58 percent of likely Minnesota voters approved of it.
Both sides expect a court challenge from a gay or lesbian couple married in Massachusetts to bring the legal fight into other states, said Kim Mills, education director of the Human Rights Campaign, a gay and lesbian advocacy group in Washington, D.C.
“That’s in flux right now,” Mills said. “We expect it to be litigated, probably, ultimately, state by state.”
The odds of such a challenge will rise only if more states — New Jersey is another possibility — follow Massachusetts’ example, McDonnell said.
“Right now, with just one state with same-sex marriage, it’s really not that big a deal,” he said. “If you end up with 10 states having it and 40 not, it becomes a big deal.”
Ultimately, he believes the issue will make its way to the U.S. Supreme Court.
“What does an employer do, when he has a married gay employee in Massachusetts, and then he wants to transfer that employee to Atlanta? That marriage isn’t recognized there. That’s why this is going to have to go the Supreme Court,” he said.
