The Defense of Marriage Act of 1996 (DOMA) regulates same-sex marriage at the federal level. DOMA was enacted largely out of concern regarding how state legalization of same-sex marriage would affect other states, federal laws and traditional views of marriage. DOMA has two sections addressing same-sex marriage:
- Section 2 provides that no U.S. state or political subdivision is required to recognize a same-sex marriage treated as a marriage in another state.
- Section 3 provides that, under federal law, the term “marriage” means only a legal union between one man and one woman as husband and wife.
In addition, a number of states have enacted laws regarding same-sex marriage, civil unions and domestic partnerships. On March 21, 2013, Colorado enacted the Colorado Civil Union Act, which provides eligible couples the opportunity to obtain the benefits, protections and responsibilities afforded to spouses under Colorado law, regardless of the gender of either person. The Civil Union Act is effective as of May 1, 2013.
Overview of the Colorado Civil Union Act
The Civil Union Act does not legalize same-sex marriage in Colorado. Instead, it legalizes same-sex and opposite-sex civil unions that offer all of the state-level rights and protections available through marriage.
Similar to federal law, the Civil Union Act defines “marriage” as the legally recognized union of one man and one woman. A “civil union,” on the other hand, is a relationship established by two eligible people under Colorado law that entitles them to receive the benefits and protections, and be subject to the responsibilities, of spouses.
To establish a valid civil union in Colorado, the two parties to the civil union must satisfy all of the following criteria:
- Both parties must be adults (over 18 years of age), regardless of the gender of either person;
- Neither person may be a party to another civil union; and
- Neither person may be married to another person.
If one party to the civil union is 18 years of age or older and under guardianship, that individual must have the written consent of his or her guardian in order to enter into a valid civil union. In addition, individuals are prohibited from entering into a civil union with a relative (including step-relatives).
Benefits, Protections & Responsibilities of Parties to a Civil Union
A party to a civil union in Colorado has all the same rights, benefits, protections, duties, obligations and responsibilities under law as a spouse. This is the case regardless of whether they are derived from a statute, an administrative or court rule, a policy, common law or any other source of law. These benefits, protections and responsibilities include, but are not limited to, the following:
- The right of a partner in a civil union to bring causes of action related to spousal status (such as wrongful death or emotional distress);
- Prohibitions against discrimination based upon spousal status;
- Workers’ compensation benefits;
- The right of a partner in a civil union to be treated as a family member or as a spouse for purposes of unemployment benefits;
- Adoption law and procedure;
- Insurance coverage provided by a health coverage plan, including the ability to cover a party to a civil union as a dependent (effective for plans issued, delivered or renewed on or after Jan. 1, 2014);
- Laws related to emergency and nonemergency medical care, treatment and hospital visitation and notification, including the rights of nursing home patients;
- Family leave benefits and public assistance benefits; and
- Protection from employment and housing discrimination based on spousal status.
Under Colorado law, a party to a civil union is included in any definition or use of the terms “dependent,” “family,” “heir,” “immediate family,” “next of kin” and other similar terms that denote a familial or spousal relationship. Parties to a civil union are responsible for the financial support of one another.
Civil Union License and Certificate
Similar to the process for a marriage, parties to a civil union will receive a civil union license and certificate. Both parties will be required to complete a civil union application and pay a civil union license fee of $7, plus several other fees for certain state funds.
A civil union license is valid only within 35 days after the date of issue. If the license is not used within 35 days, it is void and must be returned to the county clerk that issued the license for cancellation.
A civil union may be certified by a judge, magistrate, retired judge or the parties to the civil union, or in accordance with any method of recognition by a religious denomination or Indian nation or tribe. However, an official of a religious institution or denomination or an Indian nation or tribe is not required to certify a civil union in violation of his or her right to the free exercise of religion.
After certification, the parties to the civil union will be required to complete and submit the civil union certificate to the county clerk, who will register the civil union.
State Income Tax Implications
Currently, federal law prohibits the filing of a joint income tax return by individuals who are not considered legally married under federal law. Colorado income taxes are tied to the federal income tax form by requiring taxpayers to pay a percentage of their federal taxable income as their state income taxes. As a result, parties to a civil union cannot file a joint state income tax return in Colorado.
IMPACT OF DOMA
DOMA does not invalidate same-sex civil unions or partnerships in states that have legalized these relationships. In addition, DOMA does not prohibit employers from providing benefits to their employees’ same-sex spouses or domestic partners. However, it does complicate the administration and taxation of domestic partner benefits, especially in states that have enacted same-sex marriage, civil union or domestic partnership laws.
Because DOMA bars federal recognition of same-sex marriage, a domestic partner or same-sex spouse is not a legal spouse for federal tax purposes. Domestic partner benefits are non-taxable only if the domestic partner or same-sex spouse qualifies as a tax dependent under the federal tax code. If a domestic partner or same–sex spouse does not qualify as a tax dependent of the employee, employers are required to report and withhold taxes on the value of employer-provided health coverage for the domestic partner or same-sex spouse.
In addition, DOMA affects eligibility for employee benefits that are regulated by federal law. For example:
- An employee cannot pay for a domestic partner’s or same-sex spouse’s health coverage on a pre-tax basis through a cafeteria (or section 125) plan if the partner or spouse is not the employee’s tax dependent.
- If a domestic partner or same-sex spouse does not qualify as a tax dependent, the employee generally cannot receive tax-free reimbursements for expenses of the partner or spouse through a health flexible spending account (FSA), health reimbursement account (HRA) or health savings account (HSA).
- A same-sex spouse or domestic partner is not considered a spouse or family member for purposes of taking leave under the federal Family and Medical Leave Act (FMLA).
- Special enrollment rights under HIPAA are not triggered when an employee acquires a domestic partner or same-sex spouse.
- Domestic partners and same-sex spouses cannot qualify as a “spouse” for COBRA purposes and do not have their own COBRA election rights.
Legal Status of Same-sex Marriage
Although DOMA had the support of Congress and the president when it was enacted, the issue of same-sex marriage has continued to evolve. All three branches of government have been involved in the debate over DOMA, by either addressing the law’s validity or proposing legislation to repeal the law.
Despite these developments, DOMA remains valid law and is still being enforced by the Obama administration. Until there is a definitive court ruling or legislation is passed to repeal the law, employers must continue to comply with DOMA.
DOMA has been the target of numerous lawsuits challenging its validity on constitutional grounds. Federal district courts have ruled that Section 3 of DOMA is unconstitutional because it violates the U.S. Constitution’s Equal Protection Clause.
The U.S. Supreme Court is currently deliberating two same-sex marriage cases that may ultimately decide DOMA’s fate. The Court is determining the constitutionality of both DOMA and California’s Proposition 8, which bans same-sex marriage in the state of California. The Supreme Court is expected to issue its decision in June 2013.
In February 2011, the Obama administration announced its legal conclusion that Section 3 of DOMA, as applied to legally married same-sex couples, is unconstitutional. Based on this conclusion, the administration directed the Justice Department to stop defending the law in federal court. However, Republican leaders in the House of Representatives have intervened to defend DOMA in legal challenges.
The Respect for Marriage Act, or RFMA, is a proposed bill in Congress that would repeal DOMA. The RFMA bill would not require states to recognize same-sex marriages. The bill is supported by former U.S. Representative Bob Barr, original sponsor of DOMA, and former President Clinton, who signed DOMA into law. The Obama administration also supports the Respect for Marriage Act. The RFMA is in the early stages of the legislative process.