With gay marriage legal in Washington and DOMA repealed, all the major barriers to same-sex couples’ being treated like straight couples appear to have fallen.
But they haven’t, necessarily. Amid the jubilation, lawyers, tax experts, and even Washington’s Insurance Commissioner’s Office have been busy trying to unwrap what it all means for private companies that, under DOMA, were allowed to deny benefits like health insurance to the same-sex spouses of employees.
Here’s the legal fine print: In Washington, when employers buy health insurance from an insurance company, that insurance is subject to state regulations, meaning these plans are required to treat same-sex and opposite-sex spouses the same. Nothing changes under the DOMA ruling.
But if an employer self-insures its health plan—meaning the employer (or a trust the employer sponsors) pays health claims—that plan is not governed by state regulation. Instead, ERISA—the federal Employee Retirement Income Security Act—becomes the guiding force. And that’s where discrimination can come in. ERISA pre-empts state law, and historically has enabled self-insured employers not to cover same-sex spouses.
Self-insured employers can choose whether or not to extend benefits to same-sex spouses, and many—even in Washington—choose not to. According to one union lawyer speaking to Seattle Weekly anonymously because ongoing talks are confidential, she’s currently representing at least two clients sparring with “large corporate employers” that are trying to deny benefits to the spouses of gay employees. (The company that owns Seattle Weekly, Sound Publishing, self-insures its health plan, and prior to its acquisition of this paper chose not to extend health and welfare benefits to same-sex spouses. The company has since changed its policy, and now extends benefits to both heterosexual and same-sex spouses.)
Now, since DOMA has come down and federal law no longer distinguishes between opposite-sex marriages and same-sex marriages, one might assume that ERISA will no longer provide cover for companies hoping to avoid extending benefits to same-sex spouses.
That assumption, however, may be incorrect.
According to an advisory bulletin issued in March by Seattle-based law firm Davis Wright Tremaine, a refusal to cover gay spouses could simply hinge on a company’s explicit statement that only opposite-sex spouses are covered, since nothing in federal law mandates same-sex coverage. “This approach would be inherently discriminatory,” Davis Wright Tremaine says in summation. But possibly legal.
At the state Insurance Commissioner’s Office, communications manager Stephanie Marquis tells Seattle Weekly that more time is needed to provide a definitive answer about what DOMA means for health benefits. She quips, “Your question has caused a bit of research around here.”
“Insurance is going to be one of the things that will touch people most directly. . . . It’s very complicated,” says David Ward, a staff lawyer with Legal Voice. “It’s fair to say that people are going to have to check with their HR department.”
ERISA may not be the only set of federal guidelines that come into play, according to ERISA expert Chuck Thulin of Seattle’s Ekman, Bohrer & Thulin, P.S. He says other federal laws—like the federal employment-discrimination law—might be applied to compel self-insured employers to offer coverage to same-sex spouses. Thulin says this “is undoubtedly an issue that plaintiffs’ lawyers will explore.”
While the DOMA ruling may not end up being a game-changer for same-sex spouses when it comes to health-care benefits, the impact will be more substantial in other areas. Specifically, Thulin says that once the DOMA ruling takes effect, retirement benefits and pension plans will be required to treat same-sex spouses the same as opposite-sex spouses.
Again locally, such questions aren’t purely academic. As The Stranger’s Dominic Holden first reported earlier this year, during Boeing’s recent contract negotiations with the Society of Professional Engineering Employees in Aerospace, pension benefits were on the table. A union representative told The Stranger that Boeing initially balked at offering survivor pension benefits to the spouses of same-sex employees, citing federal laws that didn’t require them to. Thanks to the Supreme Court, Thulin says, “That argument is pretty much moot after the DOMA decision.” The aerospace giant later agreed to extend survivor pension benefits to same-sex spouses companywide, but not before the haggling made international headlines.
What’s the takeaway from all this? Whether or not legal wiggle room still exists in some instances to exclude same-sex spouses from self-insured health and wellness benefits—even after the DOMA ruling—those on the ground see the tide turning. Most say they hope the pressure on companies to do what’s right will be enough to persuade them.
“The Supreme Court’s action certainly sends a powerful social message that encourages equal treatment of same-sex couples,” says the ACLU of Washington’s Doug Honig. “The Court does not stand isolated from society. I think people understand that this was an historic ruling that reflected a major cultural shift toward acceptance of same-sex relationships by the American public.”
“We do think they ought to be [offering benefits to same-sex spouses],” says Ward. “The momentum is clearly going that way.