Deconstructing DOMA: The DOL Takes Its First Step Down The Path Toward Extended Rights for Same-Sex Spouses

Alerts / August 15, 2013

The United States Department of Labor (DOL) just took the first of "many steps" it plans to take over the coming months to implement the United States Supreme Court's decision in United States v. Windsor,[1] striking down Section 3 of the Defense of Marriage Act (DOMA). On Friday, August 9, 2013, the DOL issued regulatory guidance, affirming that same-sex couples are now eligible to take leave under the Family and Medical Leave Act (FMLA) to care for an ailing spouse. According to an internal memo to staff members from Labor Secretary Tom Perez, the agency has updated numerous guidance documents to remove references to DOMA and to solidify the availability of spousal leave under the FMLA for same-sex couples.

At present, it is the states that remain at the helm of defining rights for same-sex couples. But, it sounds as though the Obama Administration is just getting started asserting its authority to extend such rights. Armed with Windsor, the feds very well may try to take control.


The FMLA regulations look to state law to define the term "spouse":

Spouse means a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.[2]

Before the United States Supreme Court's landmark decision this past June in Windsor, the FMLA's provisions were also governed by Section 3 of DOMA, which provided that:

. . . the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers to only a person of the opposite sex who is a husband or a wife.[3]

Thus, even if a state permitted same-sex marriage, DOMA did not recognize the union. Therefore, before Windsor, employees in same sex marriages could lawfully be denied federal FMLA leave to care for their spouses.

Writing for the majority opinion for a 5-4 divided Court, Justice Anthony Kennedy wrote that DOMA -- which by its design and terms was intended to interfere with the dignity of state sanctioned same-sex marriages by depriving those couples of equal treatment under federal law -- violates the basic due process and equal protection principles of the Fifth Amendment of the Constitution.

For purposes of the FMLA, the DOL has now included in its definition of "spouse" employees who are husband or wife in a "same-sex marriage" recognized under state law.[4]


Windsor impacts only couples who are legally married and does not require states to permit same-sex marriages. Further, under the DOL's revised guidance, married gay and lesbian couples' eligibility for FMLA benefits will depend on the state in which the employee resides. Equal rights activists have noted that, while the high court's decision and the DOL's guidance are steps in the right direction, there is still a long way to go.

At this time, thirteen states and the District of Columbia recognize same-sex marriage. Minnesota is the most recent state to legalize same-sex marriage, enacting legislation signed into law by Governor Mark Dayton on March 14, 2013, that went into effect just this month. An additional seven states recognize civil unions or domestic partnerships, granting rights similar to marriage.

With President Obama's second term in full swing, federal agencies are developing aggressive initiatives to expand rights for employees who are part of a same-sex union. The DOL's guidance issued on Friday follows a policy already issued by the Office of Personnel Management last June that extends certain benefits, such as health, life, dental, vision, and long-term care insurance, to same-sex spouses. The DOL's guidance was also issued concurrently with an announcement from the Social Security Administration that it would begin processing spouse retirement claims for same-sex marriages and paying out the benefits.

According to Labor Secretary Perez, he has directed heads of agencies within the DOL "to look for every opportunity to ensure that we are implementing [Windsor] in a way that provides the maximum protection for workers and their families." While the DOL's guidance did not expand FMLA leave eligibility to same-sex married couples who live in states that do not recognize same-sex marriage, it seems that extension by the DOL is not out of the question for the future. We'll await its next step.

Maneuvering this evolving legal landscape in the implementation and administration of policies and benefits for same-sex couples can be treacherous, particularly for companies operating in numerous states. With employment law experts throughout the country, BakerHostetler is available to assist you with a roadmap to navigate these issues.

Please contact any member of our Employment and Labor Group for assistance or questions regarding the material presented in this alert.

Authorship Credit: Kevin W. Shaughnessy and Tiffany L. Cummins

[1] 133 S.Ct. 2675 (2013). Windsor is one of two blockbuster gay rights cases issued by the high court on June 26, 2013. In Hollingsworth v. Perry, the Supreme Court also upheld an earlier district court decision finding California's ban on same-sex marriage, imposed as a result of the Proposition Eight voter initiative, unconstitutional. 133 S.Ct. 2652 (2013).
[2] 29 C.F.R. § 825.122(a).
[3] 1 U.S.C. § 7.
[4] DOL Fact Sheet #28F: Qualifying Reasons for Leave under the Family and Medical Leave Act (August 2013).

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