On June 26th 2013 the US Supreme Court issued its decision in the United States vs. Windsorcase and radically changed the rights granted to same sex marriages. This decision strikes down the Federal Defense of Marriage Act that states that marriage is defined by the union between a man and a woman.
The consequences of this decision was major as it gives to same sex married couples access to some federal benefits as equally as heterosexual married couples. There are over a thousand federal laws in which marriage is a factor. These laws confer rights, protection and benefits to married couples.
In the specific case of California, the Supreme Court decision also means that same sex couples married during the 5 month period of time in 2008 during which marriage was legal, are still legally married.
Same sex married couples may now access specific social security benefits such as spousal retirement benefits or spousal survivor benefits; tax benefits such as the possibility to file joint income tax return with the IRS; veteran and military benefits; federal employment benefits and immigration benefits. Eligibility to these benefits must still yet be determined by each specific federal agency.
The fact that same sex marriage isn’t legal in all of the American states will not impact accessibility to benefits with federal agencies. Indeed the factor that matters is the place of celebration and not the place of residence of the married couple. That means that same sex marriages will qualify for immigration status, federal employee benefits, IRS and federal tax benefits even if they are residing in a non-recognition state.
The recognition of marriage equality also impact companies, as employers across the country must start making sure that they respect same sex spouses by giving them access to their employee benefits.
Employers with fully insured state regulated plans based in states that recognize marriage equality will generally be required to provide benefits to same sex spouses if they already provide benefits to different sex spouses.
Employers with plans present in multiple states that don’t all recognize same sex marriage may not be required to grant equal access to benefits to same sex spouses but are highly encouraged to do so.
Employers should also make sure that their communications and forms make clear that same sex spouses are eligible for spousal benefits by using inclusive language and by using the generic term “spouse” as opposed to “husband” or “wife”.
Also employers will have to grant access to the benefits with the same conditions that exist for different sex spouses. Indeed, employers should not require additional documentation from same sex spouses if such documents are not required for different sex spouses. For example, if an employer doesn’t usually require a marriage certificate from different sex spouses, a marriage certificate can’t be required for same sex marriages.
The Windsor ruling also had an impact on federal legal matters. On February 10th 2014, Attorney General Holder issued a formal memo outlining the Department of Justice new policy regarding same sex marriages.
The US government expanded recognition of same sex marriage in federal legal matters “in order to ensure equal treatment for all members of society regardless of sexual orientation”. As a consequence of that memo, legally married same sex spouses of inmates will now have the same rights as any other spouse including visiting federal prisons, regardless of the state where the inmate is incarcerated or where the spouse lives.
The Department of Justice also expanded the invocation of marital privileges to same sex marriages including the confidential communications privilege (between spouses during their marriage) and the testimonial privileges (spouses protected from testifying against the other spouse).