EMPLOYMENT ESSENTIALS RELATED TO SAME-SEX MARRIAGES IN OREGON

Status of Same-Sex Marriage in Oregon

Before it stopped issuing marriage licenses to same-sex couples on April 20, 2004, in response to Judge Frank L. Bearden’s opinion and order released that day, Multnomah County issued more than 3,000 licenses. In his opinion, Judge Bearden found that Oregon’s marriage laws only permit the marriage of a man and a woman, not same-sex couples, and that those laws violate the state constitution by denying same-sex couples “certain substantive benefits” of marriage. However, conscious of the implications of his decision, Judge Bearden carefully crafted an order (i) requiring the State to record those marriage licenses already issued as of that date, and (ii) requiring Multnomah County to stop issuing marriage licenses to same-sex couples as of that date, and continuing until 90-days after the commencement of the next legislative session. The purpose of the moratorium is to allow the legislature time to address what the Court found to be the discriminatory effect of Oregon’s marriage laws; however, if the legislature or an appellate court fails to take action before that time, the County will thereafter resume issuing marriage licenses to same-sex couples. The parties have appealed Judge Bearden’s opinion to the Court of Appeals, which had issued a temporary stay on the requirement that the State record those marriage licenses already issued; however, on July 9, 2004, the Court vacated the temporary stay and ordered those marriage licenses be registered by the State Registrar. Unfortunately, the effect of those marriage licenses issued and registered remains unclear, and is not likely to be resolved until either the legislature or an appellate court takes further action.

What Does This Mean For Retirement and Health Plans?

Federal law – the Defense of Marriage Act adopted in 1996 (“DOMA”) – defines marriage as between only a husband and wife, and provides that no state is required to recognize a same-sex marriage license issued in another state. Since retirement and health plans are predominately regulated by federal law, those plans are not required to offer spousal benefits to same-sex couples (whether their marriage is legitimized in another state, or potentially in Oregon). However, nothing prohibits an employer from voluntarily providing benefits to same-sex couples. If you decide to offer health benefits to same-sex couples, you should be aware the tax treatment of those benefits will be different for same-sex couples (or other unmarried couples) because the federal tax code does not recognize the couple as “married” – for example, health benefits provided to a same-sex spouse would be taxable to the employee. Before deciding to offer benefits to same-sex couples, it is essential to contact your insurance carrier or benefits provider to ascertain what options are available in your particular situation.

What Does This Mean For Other Employee Benefits?

Until this issue is resolved in Oregon, employers should be careful denying spousal benefits regulated by state law (as opposed to federal law) to employees in a same-sex marriage. Although it appears same-sex marriages do not presently qualify for spousal benefits, if Oregon were to eventually recognize those same-sex marriages for which licenses have been issued and registered, an employer could conceivably be liable for retroactive claims in cases where it denied benefits to those same-sex spouses.

What About the Oregon Family Leave Act?

In February, 2000 the Bureau of Labor and Industries (“BOLI”) amended the regulations under the Oregon Family Leave Act (“OFLA”) to include "same-sex domestic partner" under the definition of "family member." According to BOLI, that change was made to conform the regulations to the ruling of the Oregon Court of Appeals in Tanner vs. Oregon Health Sciences University which held that the Oregon Constitution prohibits state laws from denying same-sex domestic partners rights that are available to married couples. As such, same-sex domestic partners are already allowed benefits under OFLA and recognition of their marriage would not affect those benefits. As a result of DOMA, the federal Family and Medical Leave Act (FMLA) does not similarly mandate spousal benefits arising from same-sex marriages.

Our Recommendation

No immediate action is necessary. However, you should be considering these issues, and how your company may want to handle them in the future as the law surrounding same-sex marriages continues to evolve. If confronted by an employee seeking benefits for their same-sex spouse, carefully consider the relevant facts and circumstances before making a decision. Keep informed, and watch for updates which may indicate a change in policy or plan is required.

If you have any questions about the employment law implications of same-sex marriages in Oregon, please contact us.

Tom Bahrman tbahrman@nsslaw.com
Jeff Chicoine jchicoine@nsslaw.com
Wayne Landsverk wlandsverk@nsslaw.com
Verne Newcomb newcomb@nsslaw.com
Rick Pope rpope@nsslaw.com
Jack Schwartz schwartz@nsslaw.com
Brian Thompson bthompson@nsslaw.com
Kjersten Turpen kturpen@nsslaw.com

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