A Small Step Forward in the Last Civil Rights Battle: Extending Benefits Under Federally-Regulated Employee Benefit Plans to Same-Sex Couples

26 Pages Posted: 22 Jun 2009  

Janice Kay McClendon

Stetson University College of Law

Date Written: June 19, 2009

Abstract

Over the last few years, states, counties, municipalities and private employers have made strides in providing same-sex couples with many of the rights and benefits offered to opposite-sex married couples. Massachusetts now recognizes same-sex civil marriages for purposes of state rights and benefits. Vermont and Connecticut recognize same-sex civil unions for similar purposes. Numerous other states, counties and municipal governments have enacted domestic partnership laws that confer some level of rights and benefits on same-sex couples who enter into registered domestic partnerships. Even private employers are beginning to offer domestic partner benefits within a draconian regulatory scheme that taxes the value of those benefits to the employee.

All of these initiatives fall short, however, in the area of federally-regulated employee benefit plans. These plans, which include both pension and welfare benefit plans offered by private employers to their employees, are governed by federal regulatory schemes that do not recognize any rights for same-sex couples, regardless of whether couples have entered into same-sex civil marriages, civil unions or domestic partnerships.

The continuing failure to recognize same-sex couples for purposes of plan benefits and the special federal income tax treatment afforded to those benefits is in contravention of the enumerated goals of the Employee Retirement Income Security Act (“ERISA”). This federal regulatory scheme was designed to protect not only plan participants, but also participants’ spouses, dependents and beneficiaries through comprehensive federal regulation of employee benefit plans. Protection consistent with those goals is being denied to same-sex couples.

The article examines state, county, municipal and private employer initiatives extending rights and benefits to same-sex couples and how those initiatives are negated in the area of federally-regulated employee benefit plans. The article also analyzes recent federal and state court decisions challenging federal and state laws denying legal recognition to same-sex couples, and concludes that court decisions are unlikely to extend rights to same-sex couples in the area of federally-regulated employee benefit plans. Finally, the article recommends an amendment to the federal regulatory scheme that will afford benefits and tax advantages to same-sex couples consistent with ERISA’s goals. The recommended amendment is also palatable in that it confers rights under these plans to same-sex couples while avoiding the political “hot potato” of federal recognition of same-sex civil marriages or civil unions.

Keywords: ERISA, employee benefit plans, same-sex couples,

JEL Classification: J26, K31

Suggested Citation

McClendon, Janice Kay, A Small Step Forward in the Last Civil Rights Battle: Extending Benefits Under Federally-Regulated Employee Benefit Plans to Same-Sex Couples (June 19, 2009). New Mexico Law Review, Vol. 36, No. 1, 2006. Available at SSRN: https://ssrn.com/abstract=1422691

Janice Kay McClendon (Contact Author)

Stetson University College of Law ( email )

1401 61st Street South
Gulfport, FL 33707
United States
727-562-7364 (Phone)
727-347-3738 (Fax)

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