Tue., April 9, 2013 10:47am (EDT)

State Laws Could Muddle Same-Sex Marriage Benefits
By Michelle Andrews
Updated: 1 year ago

Till death do us part, so let's figure out this insurance mess.
Till death do us part, so let's figure out this insurance mess.
Even if the Supreme Court sweeps aside barriers to federal- and state-sanctioned same-sex marriages this summer, where you live and work may still affect your access to health insurance benefits for a same-sex spouse.

The court is considering whether the Defense of Marriage Act, which bars the federal government from recognizing same-sex marriages, is constitutional. It's also weighing whether it's permissible for states, in this case, California, to refuse to recognize same-sex marriages. Multiple outcomes are possible.

The court could, as some predict, strike down the section of the law banning federal recognition of same-sex marriages but leave unsettled questions related to state recognition of such unions. If that happens, health coverage problems for same-sex couples could persist, say advocates.

"Until same-sex couples can marry coast-to-coast and be entitled to equal treatment under federal law, we're going to continue to see problems," says Tara Borelli, a staff attorney at Lambda Legal, an advocacy group.

Now, nine states and the District of Columbia recognize same-sex marriage, according to the National Conference of State Legislatures.

If a same-sex couple both lives and works in the District there may not be insurance difficulties. But what if one of them works in Virginia, where same-sex marriage isn't recognized? If a Virginia-based employer doesn't voluntarily provide benefits to same-sex spouses, the employee might not be able to insure a spouse even though they're legally married in the state where they live.

It's worth noting that a growing number of employers are stepping up to the plate. In 2012, over half of employers with 10 or more workers offered same-sex health insurance benefits, according to human resources consultant Mercer.

If the Supreme Court were to strike down the section of DOMA that prohibits federal recognition of same-sex marriages but let states decide their own marriage laws, "it adds a lot of complexity," says Catherine Stamm, a senior associate at Mercer. "Which state law will apply--where they're married, where they work, where they pay taxes, or where their insurance is based?"


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