The U.S. Supreme Court’s landmark Windsor decision striking down Section 3 of the federal Defense of Marriage Act (DOMA) left who can marry whom up to the states. Well, maybe not, as lawsuits contesting bans on same-sex marriage continue to mount. Here’s where things stand.
Delaware. Same-sex marriage was recognized in the state, beginning July 1, 2013. This coming July 1, all remaining civil unions will automatically be converted into marriages. In addition, individuals in relationships other than marriages that were entered into in other states will have all the same rights and benefits as individuals who marry. For employees in the latter category, employer-provided benefits will remain taxable for federal purposes, but will be tax-free for state purposes.
Illinois. Beginning June 1, 2014, the state will recognize same-sex marriage. Employees in same-sex marriages, therefore, will be able to pay for their spouses’ health benefits on a tax-free basis.
Oklahoma. A federal trial court ruled in Bishop v. U.S. (No. 04-CV-848-TCK-TLW, N. Okla., 2014), that Oklahoma’s constitutional amendment limiting marriage to opposite-sex couples violated the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. However, unlike Utah (see below), the trial court stayed its decision, pending appeal to the 10th Circuit. So nothing changes for employers in Oklahoma.
Utah. Once a federal trial court ruled in Herbert v. Kitchen (No. 2:13-cv-217, Utah, 2013), that the state’s mini-DOMA law was unconstitutional, and refused to delay its decision pending appeal, about 1,300 same-sex couples married. The Supreme Court then stepped in and halted the decision until an appeal is argued in the 10th Circuit. The U.S. Attorney General has said that those couples who did legally marry before the decision was put on a hiatus are entitled to all federal spousal benefits, including employer-provided benefits. Note: Employer-provided benefits are still taxable at the state level.
TREAD CAREFULLY: Utah employers are in a tough spot, since it’s usually not appropriate to inquire into employees’ personal lives. However, since this is a unique situation, it would probably be acceptable to ask employees to present their marriage licenses to confirm their marital status.
Virginia. A federal trial court ruled that Virginia’s constitutional and statutory bans on same-sex marriage are unconstitutional. The decision is stayed pending an appeal to the 4th Circuit. (Bostic v. Rainey, No. 2:13cv395, E. Va., 2013)