DOMA and The Other Shoe

March 27, 2015

In 2013, when the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act (“DOMA”), which defined “marriage” for purposes of federal statutes as a legal union between one man and one woman, Justice Antonin Scalia vehemently dissented on behalf of himself and 3 other Justices, opining that it is just a matter of time until the courts strike down similar state laws:

In sum, that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the “personhood and dignity” which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures’ irrational and hateful failure to acknowledge that “personhood and dignity” in the first place. . . . As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.

United States v. Windsor, 570 U.S. ___, ____ (2013). For employers in South Carolina, that other shoe may have just dropped. On October 6, 2014, the U.S. Supreme Court declined to review various challenges throughout the nation to state-level same-sex marriage prohibitions, including the Fourth Circuit Court of Appeals’ decision in Bostic v. Schaefer holding that Virginia’s various laws defining marriage as between one man and one woman as unconstitutional. Therefore, the Fourth Circuit’s decision effectively is the law governing Virginia, West Virginia, Maryland, North Carolina and South Carolina.

Although no court decision has been issued to address the laws and the administration of state government of South Carolina which limit the definition of marriage to exclude same-sex marriage, there currently is one pending in federal district court in Columbia, Bradacs v. Haley, which was placed on hold until the Fourth Circuit’s Bostic decision was finally resolved. Now, it is likely that the district court will resume the case and make a decision by applying the Fourth Circuit’s Bostic opinion and holding that South Carolina state laws and government interpretations that do not recognize same-sex marriage for purposes of state law (either in-state or out-of-state marriages) are unconstitutional.

What does this mean for South Carolina employers? For purposes of applying federal laws to their employees, little will change. Since the U.S. Supreme Court’s decision in Windsor in June 2013, the federal government has systematically implemented federal laws and policies that define “marriage” to include marriage of individuals of the same sex who were lawfully married under state law. For example:

In September 2013, the U.S. Department of Labor issued Technical Release 2013-04 to provide guidance to employee benefit plans, plan sponsors, plan fiduciaries and plan participants and beneficiaries in light of Windsor. Specifically, the USDOL stated its intent to interpret the terms “spouse” and “marriage,” as those terms are used in ERISA and the Internal Revenue Code, to incorporate same-sex marriage and to require employers to recognize same-sex marriages of employees who were lawfully married in other states, regardless of whether the employer or employee is located in a state that does not recognize same-sex marriage.
In September 2014, the U.S. Department of Health and Human Services Office of Civil Rights issued guidance stating that the HIPAA Privacy Rule will be interpreted so that the term “family member” includes same-sex spouses and dependents of same-sex couples. Therefore, same-sex spouses and dependents will be considered family members and will be able to receive an individual’s protected health information for purposes of the family members’ involvement in the care of the individual and/or the individual’s death. In addition, the genetic information of same-sex spouses and dependents will be incorporated into the HIPAA prohibition against using genetic information of individuals and their family members for underwriting purposes.

The impact of the recognition of same-sex marriage under South Carolina law is yet to be seen. However, employers should anticipate, at a minimum: the ability of an employee to take FMLA leave to care for a same-sex spouse or dependent of a same-sex spouse; modifications to the scope of qualified domestic relations orders for retirement benefits purposes; the ability of a same-sex spouse of an employee to bring suit to recover workers’ compensation benefits resulting from the employee’s death or injury; and additional exposure to loss of consortium claims by same-sex spouses of employees. For public employers, the impact on a spouse’s entitlement to certain public employee benefits will be expanded as well.