In a landmark civil rights case, the U.S. Supreme Court today struck down the portion of the Defense of Marriage Act (“DOMA”) that denied federal benefits to legally married same-sex couples. Besides having tremendous symbolic significance as a victory for liberty and equality, the case will have a major impact on various employment laws, particularly the Family and Medical Leave Act (“FMLA”) . . . just not in Ohio.
The terms “marriage” and “spouse” appear in approximately 1,000 different federal laws, affecting everything from criminal prosecutions to taxes to the workplace. Enacted by Congress in 1996, DOMA specified that, for purposes of all federal laws, “marriage” and “spouse” mean only opposite-sex couples. Same-sex couples were specifically excluded, with Congress explicitly stating its “moral disapproval of homosexuality.” In today’s decision, United States v. Windsor, the Supreme Court struck down this section of DOMA. The Court explained that DOMA’s denial of federal benefits to lawfully married same-sex couples was “designed to injure” those couples, and thus deprived them of their rights to “liberty” and “equal protection” of law guaranteed by the Fifth and Fourteenth Amendments respectively.
Among the many laws affected by the Court’s decision in Windsor is the Family and Medical Leave Act. The FMLA provides eligible employees up to twelve weeks of unpaid, job-protected leave in a variety of circumstances, one of which is “to care for the employee’s spouse . . . with a serious health condition.” At first glance, this would lead one to believe same-sex couples are now entitled to the protections of the FMLA. Historic though today’s decision is, there is a crucial limitation on its scope that affects the rights of same-sex couples in Ohio.
Because of another section of DOMA not at issue in Windsor, the decision applies only to those same-sex couples who are (or become) married under their respective States’ marriage laws. Currently, twelve States and the District of Columbia recognize same-sex marriage. Ohio is not one of them. As a result, same-sex couples in Ohio are likely not entitled to the protection of the FMLA’s “spouse” provision. Similarly, same-sex couples who were lawfully married in another State and then moved to Ohio might fair no better. That is so because the FMLA defines “spouse” based on “State law for purposes of marriage in the State where the employee resides.” Although not entirely clear, LGBT employees who reside in Ohio, even if legally married in a different State, would apparently not meet this definition. So for the time being, the benefits of Windsor will not reach same-sex couples in Ohio, at least as far as the FMLA is concerned. But it’s probably only a matter of time.