John Houston Pope, a Member of the Firm in the Employee Benefits, Litigation, and Labor and Employment practices in the New York office, was quoted in article titled, “New Same-Sex Marriage Risks Loom After Supreme Court Ruling”
Following is an excerpt:
Businesses face new risks following the Supreme Court’s decision that struck down part of the Defense of Marriage Act on June 26, because the status of same-sex marriage in benefits plans is less clear now than it was before that ruling.
The Court ruled unconstitutional Section 3 of DOMA, which effectively denied federal recognition to same-sex marriages valid under state law, but left in place section 2, which says one state doesn’t have to recognize same-sex marriages performed in another state.
Earlier this month, the U.S. Department of Defense announced it would extend benefits to same-sex spouses who present a valid marriage certificate, and offer leave to same-sex couples to travel to a state where the marriage can be celebrated, even if the couple resides in a state that doesn’t recognize such marriages, but same-sex partners in civil unions are not eligible for the benefits.
“They [the DOD] have no risk on it because state law can’t overrule them,” said John Houston Pope, a member of the law firm Epstein Becker & Green, PC, who also explained that, “A corporation would be at risk instituting that in a state that does not recognize same sex marriage.”
If companies that previously recognized same-sex domestic partnerships and civil unions now decide only to recognize same-sex marriages, “You risk those folks saying you are discriminating against me because in order to get a benefit I previously had, I have to incur expense, difficulty, and perhaps even violate my conscience by going to another state to get married,” Mr. Pope said.
The question applies not only to tax liability on benefits for same-sex partners, but also to spousal protections in pension plans that require acknowledgements and waivers for distributions or changes. Mr. Pope offers the hypothetical example of a same-sex spouse who in January of 2013 cashed in a 401K plan and went on a spending spree, with no waivers from the spouse because DOMA said they were not married. In June, the Supreme Court declared that provision of DOMA unconstitutional. Although the company had acted in accordance with the law on the books prior to the Court’s decision, Mr. Pope said, “You could certainly see there may be somebody out there who might say this treated me improperly.”