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COPYRIGHT 2004 Aspen Publishers, Inc.
Determining the marital state of an employee never was much of a challenge for human resource departments. If you produced a marriage certificate from any state or country, you were considered legally wed; if you presented a divorce decree or death certificate, you were officially no longer married. An employee who tied the knot in Texas, Hawaii, or even Brazil and subsequently moved to Rhode Island was no more or less married than before.
In the past year, however, determining whether an employee's significant other is actually his or her "spouse" has become far more complicated. The Massachusetts Supreme Judicial Court has ruled that starting May 17, 2004, same-sex couples can be legally married in that state--even though the federal Defense of Marriage Act (Public Law 104-199) (DOMA) stipulates that such nuptials are not recognized under federal law. Additionally, some city halls on both coasts have been inspired to start granting same-sex marriage licenses--even though they may be illegal under state law. To top it off, 38 states (at the last count) have laws specifically providing that they will not recognize any same-sex marriage performed in another state.
The constitutionality of both DOMA and those state prohibitions is being challenged in litigation that is certain to reach the Supreme Court but is unlikely to be decided for several years. Putting aside issues of morality--I am speaking strictly as an employee benefits attorney-how can a company decide the rights of an employee's same-sex spouse under a benefit plan until the courts definitively rule whether, in a legal sense, they are really married or not? As things stand, HR administrators need a marriage certificate and a legal...
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