Federal recognition of marriage-related financial benefits for same-sex couples is the crux of the battle to rescind the Defense of Marriage Act. Same sex marriage is not recognized in any federal court, and same sex marriage couples are not eligible to receive any federal benefits — including military spousal survivor, social security, and tax relief and immigration laws governing spouses. Nine states recognize same sex marriages but federal law exempts companies in most cases from providing benefits to same sex spouses. Several cases have come before federal appeal courts, challenging Section 3 of the Defense of Marriage Act — which is blocking couples from receiving spousal health benefits, spousal estate taxes, disability benefits, and spousal immigration sponsorship.
Companies located in states that allow for same sex marriage have the option to respect and honor the couple’s wishes and the legal standing of the marriage or they can hide behind the federal law and “make a business decision” to deny same sex couples the same benefits it gives to opposite sex couples.
Deena Fidas, deputy director of corporate programs for the Human Rights Campaign explained “Because of the way DOMA defines spouses, if I have a husband who's on my health care plan, I don't pay federal taxes on his share of benefits, but if I have a domestic partner, I do.”
Fortune Magazine reported that Ernst and Young was one of 35 companies that removed the provision requiring same sex partners to pay income taxes on health and wellness benefits. Ernst & Young along with American Express (AXP), Bank of America (BAC), Microsoft (MSFT), Morgan Stanley (MS), and Yahoo (YHOO) began offering the benefit in 2012.
The Kaiser Foundation reported a Mercer survey of 3,000 employers found a little over half, 52%, provided “domestic partner health benefits. That’s up from 31% in 2010.” All large companies are not following the enlightened, moral and ethical lead of American Express and Yahoo. The common concern of employers is the additional cost of providing the benefits to same sex partners. However, the Human Rights Campaign noted a 2005 Hewitt Associates study which found that 95% of companies who offered domestic partner benefits to same-sex partners found that related expenses rose less than 3%.
Nevertheless there are companies that have chosen to deny same sex couples the same benefits they provide opposite sex couples.
Boeing “one of the largest global aircraft manufacturers in the world has told its union that it will likely deny pension survivor benefits to same-sex married couples.” According to The Stranger, Ray Goforth, who represents the employee, explained, “Boeing representatives told him that pensions are governed by federal law." Goforth said Boeing's position means that employees “can be discriminated against based on who they are.”
Other companies are dropping coverage for domestic partnerships in states that recognize and allow same sex marriage. The New York Times reported that Corning, I.B.M. and Raytheon will require couples to be legally married in states that allow same sex marriage in order to receive health and other employer sponsored benefits. They will continue to provide “domestic partner benefits to employees with same-sex partners in states where they cannot marry.”
Chick-fil-A started a media firestorm when its owner, Don Cathay announced he was anti-gay marriage. The company does not provide domestic partnership benefits. Money magazine said, “ExxonMobil has consistently received a score of zero in the Human Rights Campaign's annual Corporate Equality Index, which measures the level of lesbian, gay, bisexual and transgender equality in American workplaces. This year, for the first time, the company received a negative score.”
Next step is to get the Defense of Marriage Act ruled unconstitutional by the Supreme Court and that will pave the way to allow same sex couples the same benefits enjoyed by opposite sex couples.