It’s amazing how fast the landscape has changed with regard to the rights of our fellow citizens in same sex relationships.  Only 27 years ago, in Bowers v. Hardwick, the Supreme Court upheld a state law criminalizing sodomy.    Some 10 years later, in 1996 President Clinton signed into law the Defense of Marriage Act (DOMA), which defined marriage as a union between a man and a woman and permitted states to refuse to recognize same sex marriages in other states.  Seven years later (and only 20 years after its decision in Bowers), the Supreme Court reversed course and held in Lawrence v. Texas that state laws criminalizing sodomy between consenting adults were unconstitutional under the Fourteenth Amendment.  Then, this past June, in United States v. Windsor, the Supreme Court invalidated the Defense of Marriage Act (DOMA).

While all this was going on at the federal level, the DirigoStatewas true to its motto. After two initial “people’s vetoes” in 1998 and 2000 overturned legislation banning discrimination on the basis of sexual orientation, Maine got it right on the third try in 2005.    And, after overturning 2009 legislation that would have permitted same sex marriage, just this past November Maine (together with Maryland and Washington) was among the first three states in the Union to legalize same sex marriage by popular vote

How does the demise of DOMA and our own Maine law permitting same sex marriage impact other laws and benefits affecting employees here in Maine and elsewhere?  A lot. 

One area of major change is Social Security.  For individuals living in Maine and those states which have approved same sex marriage, surviving spouses of the same sex now will be entitled to survivor benefits.  But what if a same sex couple marries in Maine and moves to another state which doesn’t recognize same sex marriage?  The answer is unclear.

A second area likely to be affected in states likeMainewhich recognize same sex marriage are pensions and 401(k) plans.  Many such plans require that employees provide death benefits to the surviving spouse (resulting in a reduced benefit to the employee) unless the spouse waives his or her right to survivorship benefits. Previously, the surviving domestic partner had no claim for such benefits.

Another area impacted is family and medical leave.  The Maine Family and Medical Leave Law (MFMLL) already gave domestic partners who had lived together for 12 months the same rights as married couples.  However, the MFMLL differs in a number of respects from the federal Family and Medical Leave Act (FMLA).  While the MFMLL covers smaller employers than the FMLA (15 vs. 50), the MFMLL permits only 10 weeks of leave every two years while the FMLA permits 12 weeks of leave annually.   DOMA’s death means that in the 13 states like Maine and the District of Columbia which recognize same sex marriage, same sex partners who formerly were only protected by the state law may now enjoy the benefits of the enhanced federal statute.  In the 37 states which do not recognize same sex marriages, same sex couples may not benefit from DOMA’s demise.

One last area that may be affected is the COBRA law, which guarantees employees and their spouses the right to opt for continued health coverage following the termination of the insured individual.  California Senator Barbara Boxer has called upon the four federal agencies which administer COBRA to insure such coverage following the Supreme Court’s recent decision. Maine has a mini-COBRA law, but that law only requires that medical benefits be provided for a year, rather than 18 months under federal law.

The impact of DOMA and the Maine Marriage Equality Act on employees as discussed above may be just the tip of the iceberg.  No doubt there may well be other laws related to employment which are affected—many of which lie submerged and as yet undetected.   But even if these are the only changes, the Supreme Court’s decision striking down DOMA has already guaranteed important federal rights and benefits for same-sex couples living in Maine.

 If you believe your rights have been violated, contact us.



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