At the end of June, SCOTUS issued a historic ruling in United States v Windsor: Section 3 of the Defense of Marriage Act (DOMA), which defined marriage under federal law as only between one man and one woman, is unconstitutional. Clients may have begun calling you asking what this means for their business, their benefits, their same-sex marriage, their desired second-parent adoption. And unfortunately, we don’t have answers to many of these questions yet.
Indeed, when a panel of employment lawyers convened at ICLE in July to discuss the impact of Windsor, the panel concluded that Windsor presents more questions than answers for employers. For example, Windsor failed to explain how to determine if a same-sex couple is married for federal law purposes. Do you look to the state where the couple was married? Or the state in which the couple are domiciled? Windsor was also silent on whether it applied retroactively. Because there was no language explicitly limiting Windsor to prospective application, the panel thinks it could have retroactive effect.
Since the panel met, the U.S. Department of Treasury and the IRS issued some guidance on these issues in Revenue Ruling 2013-17. The ruling states that regardless of domicile, a same-sex couple will be married for federal tax purposes if they were married in a jurisdiction authorizing same-sex marriage. Although the ruling wasn’t effective until September 16, 2013, taxpayers can rely on its terms when filing returns for prior years, so long as the statute of limitations hasn’t expired. The ruling also stated further guidance regarding Windor's application is forthcoming (and this guidance is starting to trickle in; see e.g. Notice 2013-61, discussing procedures to claim refunds or adjust overpayments of FICA and employment taxes).
Even though the law may be unclear—especially in states like Michigan, which have yet to recognize same-sex marriage—the panel said it was a good idea for employers to review their policies and programs and decide if they want to maintain their current definition of “spouse.” Items such as company discounts, bereavement leave policies, emergency contacts, immigration policies, FMLA policies, welfare benefits, and retirement benefits are all ripe for review.
To hear more of the panel’s advice and analysis of Windsor, see the webcast, What the DOMA Decision Means for Employers, by Gary Francis, Norbert Kugele, and Lisa Zimmer. If you’re interested in an analysis of Windsor from a family law perspective, consider attending the 12th Annual Family Law Institute in November, which will feature a panel presentation on DOMA and the U.S. Supreme Court Marriage Equality Decisions.