In the recently-issued opinion in United States v. Windsor, the Supreme Court has ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional as a violation of the Equal Protection Clause of the Constitution. Section 3 of DOMA provides that for purposes of federal law, the word "marriage" means "a union of a man and a woman" and the definition of "spouse" is "a person of the opposite sex who is a husband or a wife." This ruling will affect a vast number of federal laws. But this Alert only addresses certain issues under the Employee Retirement Income Security Act of 1974, as amended (ERISA), the Family Medical Leave Act (FMLA), the Internal Revenue Code of 1986, as amended (Code) and certain state income tax issues.
 
While the full implications of this ruling will take time and regulatory guidance to understand, what is clear at a minimum is that differential treatment of opposite-gender and same-gender married couples is not permissible in the states that allow or recognize same-gender marriages. At present, there are 13 states (California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington) and the District of Columbia that allow or recognize same-gender marriage.
 
One of the many issues left unresolved following the court's ruling is the impact on same-gender spouses residing in states that do not recognize or directly ban same-gender marriage. Regardless, unless and until a federal court interprets the Windsor decision otherwise, one presumption worth considering is that federal regulatory guidance (when issued) will uniformly recognize all marriages of same-gender couples throughout the United States, provided the marriage is valid in the state where the marriage occurred. There are pros and cons to relying on this presumption, which further underscores the need to seek advice from your legal counsel as to your particular circumstances.
 
While employers await guidance from the IRS and U.S. Department of Labor, among other federal agencies, there are some considerations to be addressed presently:
There are very few unequivocally clear take-aways from the Windsor decision. Based upon the facts of that case, those clear mandates are grounded in facts where the marriage of the same-gender couple is recognized under state law but yet federal law dictates an unequal treatment in comparison to same-gender couples. Outside that set of facts, legitimate presumptions are the only real guidance available to employers, employees, spouses in same-gender marriages and children in such marriages, among others.
 
As stated numerous times throughout this Alert, we sincerely encourage employers to be proactive in seeking legal counsel regarding the impact of the Windsor decision upon their particular facts and circumstances. Delays in seeking such counsel (such as hoping for guidance from the Internal Revenue Service, Department of Labor or any other federal agencies, or certainly waiting for definitive court decisions on any one of a number of topics) could place the employer at jeopardy. At least where the rules are now relatively clear, employers should revise their plans, policies, practices and procedures.