The Defense of Marriage Act, or DOMA, was signed into law by former President Clinton on Sept. 21, 1996, after passing both houses of Congress by large majorities. 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.
Since its enactment, DOMA has been the subject of both political and legal controversy. It has been ruled unconstitutional by several federal courts and legislation repealing it has been proposed in Congress. At this time, however, DOMA remains the law and, as such, it is enforced by the Obama Administration.
This Business Benefits Group Legislative Brief provides an overview of DOMA, including a summary of DOMA’s impact on state legislation and employee benefits and a summary of DOMA’s current status.
IMPACT OF DOMA
DOMA does not invalidate same-sex marriages in states that have legalized same-sex marriage. Although the majority of states have passed laws refusing to recognize same-sex marriages, nine states and the District of Columbia have approved laws to legalize same-sex marriage. These states are Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington. In states where same-sex marriage has been legalized, married same-sex couples are entitled to the same state-level protections and benefits that are afforded to married heterosexual couples.
However, due to Section 2 of DOMA, same-sex marriages performed in the states listed above are considered valid only in those states, unless another state elects to recognize them. California, for example, has passed legislation that requires the full legal recognition of same-sex marriages lawfully performed outside of the state.
Other states, including New Jersey, Illinois, Hawaii, Delaware, Rhode Island, Oregon, California, Colorado, Wisconsin and Nevada, have legalized same-sex civil unions or domestic partnerships that offer some state-level rights and protections similar to marriage. DOMA also does not invalidate these unions or partnerships.
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.
CURRENT LEGAL STATUS
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. The U.S. Supreme Court may ultimately decide DOMA’s fate. However, 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.
On May 31, 2012, the First Circuit Court of Appeals issued the first appellate court decision on the constitutionality of Section 3 of DOMA. Similar to the lower courts, the appeals court ruled that DOMA is unconstitutional on equal protection grounds. The First Circuit’s decision has been stayed, meaning that it will not take effect, due to the likelihood that the issue will be appealed to the Supreme Court. On Oct. 18, 2012, the Second Circuit Court of Appeals also ruled that DOMA is unconstitutional on equal protection grounds.
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. It has been speculated that, because it is an election year, action on the bill is unlikely in 2012.