On Tuesday, July 19, 2011, the White House announced President Obama's support for repeal of the Defense of Marriage Act (DOMA). The DOMA defines marriage for purposes of federal benefits, including FMLA leave, as a union between one man and one woman. DOMA limited the availability of FMLA leave to care for a spouse to heterosexual marriages, thereby excluding same sex marriages and civil unions. In February of this year the Obama administration announced that it would not longer defend the constitutionality of the DOMA. The recent announcement would repeal the DOMA altogether.
The repeal of the DOMA is contained in the Respect for Marriage Act of 2011, S. 598 and H.R. 1116. The House and Senate bills are identical. Both would repeal the section of the DOMA defining marriage as the union of one man and one woman. In its place, the legislation propose the following language:
For purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individuals marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.
The proposed legislation defines a "State" to include the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.
Comment: If enacted, the Respect for Marriage Act would require covered employers to permit FMLA leave to care for a same sex spouse, provided that the marriage was legally recognized in the State where the marriage was entered. The Respect for Marriage Act does not set a national standard stating that same sex marriages are valid for purposes of the FMLA. Rather, the Respect for Marriage Act requires employers to look to State law to determine if a marriage is valid. Curently, a few states recognize same sex marriage. Many states outlaw same sex marriage. Some states recognize same sex civil unions or domestic partners, but not same sex marriages. Because they do not have the same status as marriage, the Respect for Marriage Act as currently written would not require employers to grant FMLA leave to an employee to care for a domestic partner or spouse in a civil union.
Combined with the Full Faith and Credit Clause of the Constitution, the Respect for Marriage Act requires covered employers with operations in states that do not recognize same sex marriage to nevertheless recognize those marriages as valid for FMLA leave purposes if the marriage was valid in the state where the marriage was entered.
For example, a same sex couple were legitimately married in New York, a State that recognizes same sex marriage. The couple thereafter moves to Mississippi for a job opportunity. Lets assume that Mississippi does not authorize same sex marriages. All things being equal (e.g., company is covered by the FMLA, employee is eligible for leave, condition meets one or more serious health condition definitions, proper notice and certifications provided, etc.), if the employee of this same sex marriage requests FMLA leave to care for their spouse with a serious health condition, the employer could not deny the leave simply because Mississippi does not recognize same sex marriages. Because the marriage arose in New York, where it was valid when entered, the couple are married for purposes of FMLA leave. The Company would process the leave request as it would any other FMLA leave request by an employee to care for a spouse.
Passage of the legislation in the Democrat controlled Senate is likely, even with their thin majority. During the run-up to the Presidential election, it will be interesting to see how the legislation fares in the Republican-controlled House. The framing of the bill as something of a States-rights issue may peel some Republicans off their otherwise expected rejection of the proposed legislation. The Obama Administration's support of the repeal of the DOMA will also require the Republican Presidential hopefuls to state their position, which may also result in a few surprises.
A link to the Senate bill is provided: http://thomas.loc.gov/cgi-bin/query/C?c112:./temp/~c1120x92ET