Gloria Hage , General Counsel, Eastern Michigan University

1. THE STATUS OF Partner Benefits AFTER DECISIONS IN United States v. Windsor and DeBoer v. Snyder Gloria Hage, General Counsel, Eastern Michigan University Alice MacDermott, Vice-President, Associate General Counsel, Health Alliance Plan

2. Defense of Marriage Act “DOMA”, 1 u.s.c. § 7 (“Section 3”) In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

3. Defense of Marriage Act “DOMA”, 28 U.S.C. §1738(c)(“section 2”) No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

4. United states v. windsor, 570 U.S. ___ (2013); 133 S. Ct. 2675 Seeks to injure the very class of persons that states sought to protect. Writes inequality into the entire U.S. Code. DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal. It therefore violates basic due process and equal protection.

5. United states v. windsor The Court did not decide: Constitutionality of state law bans on marriage for same sex couples. Constitutionality of DOMA Section 2, authorizing states to deny recognition of marriages in other states.

6. Employee Benefits in a post-windsor World Why Does It Matter?

7. Employee Benefits in a post-windsor World Post-Windsor Favorable federal tax and other treatment for most types of benefits E.g. Employer provided health care benefits for employee’s spouse is not subject to federal tax State tax treatment – state by state

8. MARRIAGE FOR SAME SEX COUPLES AND State Laws The NUMBERS

9. From the beginning of time… through 2003

10. 2004 MASS

11. 2008 MASS CONN CALIFORNIA

12. 2009 VT MASS CONN IOWA

13. 2010 VT NH MASS CONN IOWA DC

14. 2011 VT NH NEW YORK MASS CONN IOWA DC

15. 2012 WASHINGTON MAINE VT NH NEW YORK MASS CONN IOWA DC

16. 2013 WASHINGTON MAINE MINNESOTA VT NH NEW YORK MASS RI CONN IOWA NEW JERSEY DELAWARE UTAH MARYLAND DC NEW MEXICO HAWAI’I

17. 2014 WASHINGTON MAINE MINNESOTA VT NH NEW YORK MASS RI MICHIGAN CONN OHIO IOWA NEW JERSEY DELAWARE ILLINOIS UTAH MARYLAND KENTUCKY DC VIRGINIA OKLAHOMA NEW MEXICO TEXAS HAWAI’I

18. MICHIGAN

19. Marriage for same sex couples in michigan Mid – 1990s, public and private employers began to offer “same sex partner” benefits in significant numbers.

20. Marriage for same sex couples in michigan 2004 Michigan General Election, Proposal 2 The proposal would amend the state constitution to provide that “the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose."

21. Marriage for same sex couples in michigan National Pride at Work, Inc. v. Governor of Michigan 481 Mich. 56 (2008)

22. Marriage for same sex couples in michigan Marriage Amendment “prohibits public employers from providing health-insurance benefits to their employees' qualified same-sex domestic partners.”

23. Marriage for same sex couples in michigan PUBLIC EMPLOYEE DOMESTIC PARTNER BENEFIT RESTRICTION ACT Act 297 of 2011 AN ACT to prohibit public employers from providing certain benefits to public employees.

24. Marriage for same sex couples in michigan 15.583 Medical or other fringe benefits; individual residing in same residence as public employee; prohibition. Sec. 3. (1) A public employer shall not provide medical benefits or other fringe benefits for an individual currently residing in the same residence as a public employee, if the individual is not 1 or more of the following: (a) Married to the employee. (b) A dependent of the employee, as defined in the internal revenue code of 1986.

25. Marriage for same sex couples in michigan DeBoer v. Snyder http://www.mied.uscourts.gov/cases/DeBoervSnyder/

26. Marriage for same sex couples in michigan DEBOER V. SNYDER The Michigan Marriage Amendment impermissibly discriminates against same-sex couples because it Violates the Equal Protection Clause in that it doesn’t advance any conceivable legitimate state interest Court did not apply a heightened scrutiny test that would apply to a suspect or quasi suspect class. Instead Court applied the rational basis test.

27. Marriage for same sex couples in michigan DEBOER V. SNYDER Court rejects all of the State’s asserted legitimate interests: Providing an optimal environment for child rearing Proceeding with caution before altering the traditional definition of marriage Upholding tradition and morality Exclusive purview of state police powers And concludes that the state’s domestic relations authority can’t trump federal constitutional limitations. Relies on Loving and Windsor

28. Marriage for same sex couples in michigan Bassett v. Snyder http://www.scotusblog.com/2013/07/after-windsor-michigan-same-sex-partners-benefits-suit-advances

29. Marriage for same sex couples in michigan BASSET V. SNYDER Michigan Public Act 297 is unconstitutional because it violates the Equal Protection and Due Process clauses. Court also applies the rational basis for review. Court finds that PA 297 was “nothing more than an attempt to bar same-sex couples from receiving partner benefits from public employers and that the historical background of the Act demonstrates that it was motivated by animus against gay men and lesbians.” Motion to Stay Decision Pending

30. What Does This Mean for Employer Provided Benefits?

31. Benefit Analysis Federal Law State Law Plan Documents Federal and State Discrimination Law

32. Federal law left this question unanswered: Which state law should be applied to determine whether a same sex couple is married ?

33. State of Celebration vs State of Residence. • Federal agencies generally look to state of celebration with a few exceptions.

34. Federal Law • Multiple federal agencies issue guidance • OPM • DOL • CMS • IRS • SSA

35. Office of Personnel Management [OPM] • Required federal plan administrators to recognize marriages based on the state of celebration. Federal employees given 60 days to make election changes to their benefits. Retirees given two years to make changes based on their marital status. • Children of same-sex marriages will be treated in the same manner as those of opposite-sex marriages and will be eligible family members according to the same eligibility guidelines. This includes coverage for children of same-sex spouses as stepchildren. • See FEHB Program Carrier Letter 2013-20 http://www.opm.gov/healthcare-insurance/healthcare/carriers/2013/2013-20.pdf

36. Employee Benefits in a post-windsor World DOL and CMS Issue Guidance Group Health Coverage DOL Guidance September 18, 2013 Technical Release 2013-04 CMS Guidance March 14, 2014 FAQ Coverage of Same Sex Spouses (clarifying earlier Exchange regulations) Insured v Self Funded Plans

37. Employee Benefits in a post-windsor World IRS Issues Guidance Rev. Rul. 2013-17 Recognizing same-sex marriage legally entered into in any state, territory, D.C. or a foreign country regardless of where the couple resides. “State of celebration.” Health Savings Accounts, Health Retirement Accounts, Flexible Spending Accounts IRS Notice 2014-1 Addresses Cafeteria Plans, FSA’s and HSA’s. CMS Adopts IRS rules for purposes of Health Insurance Marketplace premium tax credits and cost sharing reductions.

38. Employee Benefits in a post-windsor World Enrollment Rights Mid-year enrollment Change in Status COBRA Qualified beneficiaries

39. Employee Benefits in a post-windsor World FAMILY MEDICAL LEAVE ACT DOL-Wage and Hour Division Fact Sheet #28F FMLA Regulations state that a spouse is determined by the law of the state where the employee resides.

40. Social Security Administration – Still working on guidance. Processing SSI claims if the couple resides in a state recognizing their marriage but holding claims where the state of residence doesn’t recognize the marriage. • CMS permits States to adopt state of celebration or state of residence for Medicaid and CHIP eligibility. But if the Medicaid eligibility is based on eligibility for another federal benefit, there is no application of a state standard. SHO #13 -006 September 27, 2013. • Medicare website guidance says SSA is now processing some Medicare enrollments for same-sex spouses, as well as requests for Special Enrollment Periods and requests for reductions in late-enrollment penalties. Employee benefits in a post-windsor world

41. Employee Benefits in a post-windsor World Retirement Plans QDRO Survivor Benefits must extend to Same Sex Spouses Spouse must consent to alternate beneficiary

42. State Law

43. Employee Benefits in a post-windsor World What if married legally in one state and reside in Michigan?

44. MARRIAGE FOR SAME SEX COUPLES AND State Laws Does federal recognition mean state recognition? Probably not Section 2 of DOMA left intact, but a few federal district courts have held that refusal to recognize is a constitutional violation.

45. MARRIAGE FOR SAME SEX COUPLES AND State Laws Implications for Benefit Programs in States that Do Not Recognize Marriage for Same Sex Couples

46. MARRIAGE FOR SAME SEX COUPLES AND State Laws Are Employers in states with bans permitted to offer partner benefits or spousal benefits to same sex couples?

47. Public Employer vs Private Employer

48. Private Employer Is a private employer permitted to offer spousal benefits to same sex couples legally married in another state? Yes.

49. Private Employer Is a private employer precluded from offering spousal benefits to same sex couples lawfully married in another state? No.

50. Private employer Can a private employer in Michigan be compelled to offer benefits to spouses of same sex couples if it offers benefits to spouses of different sex couples? Probably not.