The First Circuit’s Decision:

On May 31, 2012, the U.S. Court of Appeals for the First Circuit, in Commonwealth of Massachusetts v. United States Department of Health and Human Services, et., al., held that Section 3 (“Section 3”) of the Defense of Marriage Act (“DOMA”), which defines “marriage” for purposes of federal law as “a legal union between one man and one woman as husband and wife,” is unconstitutional. A unanimous three judge panel of the First Circuit found that Section 3 violates the U.S. Constitution’s “equal protection clause.” However, the First Circuit stayed enforcement of its ruling, anticipating the government will seek Supreme Court review and that such review is highly likely.

The case arose when seven same-sex couples married in Massachusetts and three surviving spouses of same-sex marriages in Massachusetts brought suit in federal district court to enjoin federal agencies and officials from enforcing DOMA to deprive them of federal benefits available to opposite-sex couples married in Massachusetts. In addition, Massachusetts brought a companion case concerned that DOMA would require revocation of federal funding for certain Massachusetts programs tied to DOMA’s marriage definition, such as the state’s Medicaid program and veterans’ cemeteries. The district court declared Section 3 unconstitutional and enjoined federal agencies and officials from enforcing Section 3, but the court stayed injunctive relief pending appeals of its decisions.

On appeal, the First Circuit agreed with the district court that DOMA is unconstitutional. Notably, the First Circuit looked to governing precedence from both equal protection and federalism cases and applied to DOMA a “closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage.” In addition, the First Circuit tested the rationales for the enactment of DOMA using guidance from Supreme Court precedence and concluded that the rationales offered for DOMA do not provide adequate support for the legislation.

Potential Impact on Employers:

If the Supreme Court affirms the First Circuit’s holding that DOMA is unconstitutional, then in states that recognize same-sex marriage, such as Massachusetts, Connecticut, Iowa, New Hampshire, New York, Vermont and D.C., same sex couples would qualify as spouses for purposes of the federal tax law, ERISA, and related federal mandates for group health plans, such as COBRA and HIPAA, as well as for purposes of retirement plan rules protecting federally recognized spouses. In such a case, employers in states recognizing same sex marriages would need to review the spousal benefit provisions of their employee benefit plans to confirm that the plans do not provide unintended benefits or consequences to same sex couples.