Tag Archives: same-sex marriage

Why Overturning DOMA Is a Win for Employee Rights

Today’s post comes from guest author Jon Rehm from Rehm, Bennett & Moore.

Regardless of your opinion on the issue of gay rights, Wednesday’s U.S. Supreme Court decision overturning the Defense of Marriage Act is a win for workplace fairness.

The constitutional authorization for most federal fair-employment laws is based on the guarantees of equal protection of the law based on the Fifth and 14th Amendments to the U.S. Constitution and the right of Congress to regulate interstate commerce clause. In his opinion overturning DOMA, Justice Anthony Kennedy found that DOMA violated the Fifth and 14th Amendment rights of gays and lesbians. He reaffirmed the role of the Fifth and 14th Amendments in preventing discrimination.

Kennedy’s opinion is important because in last summer’s blockbuster Supreme Court decision upholding the Affordable Care Act, Chief Justice John Roberts undercut the interstate commerce clause as a justification for passing federal legislation. Conceivably, corporate opponents of workplace fairness laws could point to Roberts’ decision in the Affordable Care Act as a way to argue that federal workplace fairness laws are unconstitutional. However Wednesday’s decision in the DOMA case means that workplace fairness laws still have clear and strong constitutional support.

The DOMA decision is a bright spot in a Supreme Court session that has otherwise been pretty bleak for employees. My opinion is that as a result of recent Supreme Court decisions, more and more fair-employment cases will be brought in state court. The decision in DOMA is still relevant to state law discrimination and retaliation claims. Most states have equal protection clauses in their state constitutions. The reasoning supporting the DOMA decision supports state fair-employment statutes. I believe this is true even for fair employment claims based on retaliation. As Justice Ruth Bader Ginsberg pointed out in her dissent in Nassar, retaliation is a form of discrimination. In other words, if you have been fired in retaliation for filing a workers’ compensation claim, your constitutional rights have been violated. If the Supreme Court had decided DOMA differently, employees would have a weaker argument that a retaliatory discharge violated their equal protection rights.

Prior results do not guarantee outcomes.
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What Does The Supreme Court’s Striking Down Of The Defense Of Marriage Act Mean For Your Social Security Disability Benefits?

The United States Supreme Court struck down the Defense of Marriage Act

On June 26, 2013, the Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) violated the Fifth Amendment and is therefore unconstitutional. While DOMA was in effect, the federal government did not recognize same-sex marriages that were performed in states where they are legal, such as New York.  This meant that the Social Security Administration was unable to pay certain benefits to individuals who would have otherwise been entitled to them if they were married to someone of the opposite sex. As this part of the law has been struck down, validly married same-sex couples should be treated identically to opposite-sex couples by the Social Security Administration. 

There are several Social Security benefits that married individuals are entitled to that unmarried individuals are not.  The two largest programs are survivor benefits and disabled widow(er)s benefits. A surviving spouse can now be entitled to benefits on a deceased spouse’s earnings record once they attain age 60 or are disabled and age 50. These benefits, once only available to opposite-sex couples, should now be extended to same-sex couples as well. Stepchildren may now also be entitled to benefits on a worker’s earnings record, if the worker is either deceased or receiving Social Security retirement or disability benefits. 

The Social Security Administration relies on state law to determine if a person was legally married. Social Security looks at the law of the state where a person was living at the time of their death to determine if their marriage was valid. It’s possible that a same-sex couple could be married in New York (or another state where same-sex marriage is legal) and then move to a state that does not recognize same-sex marriage.  According to Social Security’s current rules, the Administration would look to the rules of the state where the person lived at the time of their death to determine if the marriage was valid. 

At first glance, this seems to mean that validly married same-sex couples could be denied benefits they would have been entitled to if they didn’t move. However, Social Security also recognizes a “deemed marriage” provision. In simple terms, if both partners believed themselves to be married, and acted like a married couple, and the only reason they are not validly married is “a legal impediment not known to the applicant” at the time of the marriage ceremony, Social Security will consider the marriage to be valid for benefit purposes.

We don’t know yet how Social Security will enact these provisions or what the end result will be. However, it appears clear to us that many people who were being denied benefits because of who they love will now be entitled to them. 

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