Marriage Equality Relationships in the States

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1 Marriage Equality Relationships in the States January 7, 2015 The legal recognition of same-sex relationships has been a divisive issue across the United States, particularly during the past two decades. Many states have entered the debate by adopting prohibitions against same-sex marriage or taking action to allow same-sex marriage or other forms of recognition for same-sex couples. Under the federal Defense of Marriage Act (federal DOMA), as enacted in 1996 and before the Supreme Court decision discussed below, marriage was defined as the union of one man and one woman, and a spouse was defined as a person of the opposite sex. All federal laws and regulations used the definition under the federal DOMA. For employee benefits purposes, same-sex spouses did not qualify as spouses for purposes of federal income tax law, ERISA and other federal mandates (e.g., COBRA, HIPAA) for group health plans, or pension plan rules protecting federally recognized spouses. The federal DOMA continues to provide that no state is required to recognize a same-sex marriage entered into in another state. On June 26, 2013, the U.S. Supreme Court handed down two long-awaited decisions on same-sex marriage that will have long-term implications for employers that sponsor employee benefit plans. The Court ruled that the section of federal DOMA defining marriage as the union of one man and one woman is unconstitutional. The opinion and its holding are confined to lawful marriages. In the second decision, the Supreme Court ruled that the petitioners in the California Proposition 8 case did not have standing to contest the district court s decision overturning California s ban on same-sex marriage. This ruling effectively allowed same-sex marriages again in California. The decision does not impact the federal or state income tax treatment of health benefits provided to civil union couples or registered domestic partners. Fully insured group health plans and health maintenance organizations (HMOs) are governed by state insurance and HMO law and must comply with state law benefit mandates. Therefore, in states that recognize civil unions and same-sex marriages, insurers/hmos that provide coverage to opposite-sex spouses will most likely need to offer coverage to civil union partners or same-sex spouses as well. Employers with fully insured plans or HMOs should carefully review their insurance policies/hmo contracts to determine compliance with these same-sex relationship laws. Less than half of the states have enacted laws that prohibit same-sex marriages or the recognition of a same-sex marriage formed in another jurisdiction, or have amended their state constitutions to define marriage as a union between a man and a woman. While many states have taken steps to prohibit the recognition of same-sex relationships, others have taken steps in the opposite direction. This Aon Hewitt bulletin focuses on these states that provide legal recognition for same-sex couples. States provide legal recognition of same-sex couples in a variety of forms, including: Same-sex marriage What is it? Marriage recognized under laws of a state between two persons of the same biological sex. Risk. Reinsurance. Human Resources.

2 Where? Alaska, Arizona, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Utah, Vermont, Virginia, Washington State, West Virginia, Wisconsin, Wyoming, and the District of Columbia allow same-sex couples to marry. Please note that although counties within a state may be issuing marriage licenses to same-sex couples, this action does not necessarily mean that the state legally recognizes same-sex marriages. Until a state has declined to appeal a court decision recognizing same-sex marriage, the legal status of the marriage is still in flux. We do not consider a state as a same-sex marriage state unless further substantial litigation has ended, and the court decisions are considered final by the state. Four Federal Courts of Appeals With 14 Non-SSM States Non-SSM States in Red D.C. Circuit District of Columbia First Circuit (Boston) Maine Massachusetts New Hampshire Rhode Island Second Circuit (New York) Connecticut New York Vermont Third Circuit (Philadelphia) Delaware New Jersey Pennsylvania Fourth Circuit (Richmond) Maryland North Carolina South Carolina Virginia West Virginia Fifth Circuit (New Orleans) Louisiana Mississippi Texas Sixth Circuit (Cincinnati) Kentucky Michigan Ohio Tennessee Seventh Circuit (Chicago) Illinois Indiana Wisconsin Eighth Circuit (St. Louis) Arkansas Iowa Minnesota Missouri Nebraska North Dakota South Dakota Ninth Circuit (San Francisco) Alaska Arizona California Hawaii Idaho Montana Nevada Oregon Washington Tenth Circuit (Denver) Colorado Kansas New Mexico Oklahoma Utah Wyoming Eleventh Circuit (Atlanta) Alabama Florida Georgia Until or unless the U.S. Supreme Court decides to take up one or more cases involving a state law ban on same-sex marriage, this issue will continue to be decided in the main by the federal courts of appeals. 1 As can be seen from the box above, four courts of appeals have states in their circuits that do not recognize same-sex marriage. At least four courts of appeals have struck down state bans. The Fifth and Eleventh Circuits have not yet ruled on the issue. The Eighth Circuit upheld Nebraska s ban back in 2006, but may hear a post-windsor case in the future. The Sixth Circuit recently upheld bans in four states. 1 There are 12 federal courts of appeals across the United States. Eleven of them are numbered, and the twelfth covers the District of Columbia. There is actually a thirteenth court of appeals, but its jurisdiction is specialized and not germane to the issue of same-sex marriage. This report was compiled by the Legislative Reporting Team 2

3 Civil union What is it? Legally recognized form of partnership similar to marriage with essentially the same legal rights under applicable state law as married couples. May be provided to opposite-sex couples as well as same-sex couples. Where? Four states (Colorado, Hawaii, Illinois, and New Jersey) allow same-sex couples to enter into a civil union. Domestic partnership What is it? Legal or personal relationship between two individuals who live together and share a common domestic life. May be provided to opposite-sex couples as well as same-sex couples. Where? Four states (California, Nevada, Oregon, and Washington State) and the District of Columbia have domestic partnership laws that allow same-sex couples to enter into a registered domestic partnership. These laws provide broad rights to domestic partners, including health benefits. Four states (Maine, Maryland, New Jersey, and Wisconsin) have more limited registered domestic partnership laws that do not include health benefits for domestic partners, but do include other rights (e.g., hospital visitation, inheritance). Other forms of recognition Hawaii and Vermont have permitted individuals of the same sex to register as reciprocal beneficiaries, though new reciprocal beneficiary relationships for same-sex couples will, in general, not be available in Hawaii as of December 2, Colorado allows individuals of the same sex to register as designated beneficiaries. These may also apply for opposite-sex couples. The following chart provides an overview of the states that provide legal recognition of same-sex relationships, including the effective dates and which provisions may also apply to opposite-sex couples. Please note that many of the laws have been amended and expanded after enactment, but the chart only reflects the original effective date. Information on litigation in the chart covers lawsuits over same-sex marriages performed in the state, not out-of-state marriage recognition. In addition to state laws permitting same-sex marriage, some Native American tribes formally recognize same-sex marriage. For instance, the Coquille Tribe in Oregon adopted an ordinance in 2008 that defines marriage as a contract between two persons, regardless of their sex. Please note that tribal recognition is not reflected in the chart. Aon Hewitt has published bulletins on many of these laws when they were initially enacted. For copies of these bulletins, or for additional information on any of these laws, please contact your Aon Hewitt consultant. Of course, a high-level overview cannot include all the nuances and details of every law. Since the law changes rapidly and is also subject to varying interpretations by different courts and certain government and administrative bodies, there is no guarantee that the legal information is completely current. Please always check with your Aon Hewitt consultant to be certain that the list of states included is up-to-date. Aon Hewitt is not a law firm, and contents of this bulletin are not intended to supersede or replace the advice of legal counsel. The following report was compiled by the Legislative Reporting Team. If you have questions or for more information, please contact us here. This report was compiled by the Legislative Reporting Team 3

4 Marriage Equality Relationships in the States State Same-Sex Marriages Civil Unions Alabama Alaska Arizona Arkansas 10/12/ /17/2014 California 6/28/ /1/ Colorado 5/1/2013 (Insurance provisions took effect 1/1/2014) Connecticut 11/12/2008 Civil union law 10/1/ Delaware 7/1/2013 Civil union law 7/1/ District of Columbia 3/3/2010 6/11/ Florida 1/6/2015 Georgia Domestic Partnerships Health Benefits Limited Benefits Other Designated beneficiaries 7/1/ Hawaii 12/2/2013 1/1/ Reciprocal beneficiaries 7/8/ Idaho 10/7/2014 Illinois 6/1/2014 6/1/ Indiana Iowa 4/27/2009 Kansas 11/12/2014 Kentucky Louisiana This report was compiled by the Legislative Reporting Team 4

5 Domestic Partnerships State Same-Sex Marriages Civil Unions Health Benefits Limited Benefits Maine 12/29/ /30/ Maryland 1/1/2013 7/1/ Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska 5/17/2004 8/1/ /19/2014 Nevada 10/7/ /1/ New Hampshire 1/1/2010 Civil union law 1/1/ New Jersey 10/21/ /19/2007 7/10/2004 2,9 New Mexico 12/19/2013 New York 7/24/2011 North Carolina 10/10/2014 North Dakota Ohio Oklahoma Oregon 5/19/2014 2/4/2008 Pennsylvania 5/20/2014 Rhode Island 8/1/2013 Civil union law 8/1/ South Carolina 11/20/2014 South Dakota Tennessee Texas Utah 11 Other This report was compiled by the Legislative Reporting Team 5

6 Domestic Partnerships State Same-Sex Marriages Civil Unions Health Benefits Limited Benefits Vermont 9/1/2009 7/1/2000 (Insurance provisions took effect 1/1/2001) 12 Virginia Washington 12/6/2012 7/22/2007 2,13 West Virginia 10/9/2014 Wisconsin 14 8/3/2009 Wyoming 10/21/2014 Other Reciprocal beneficiaries (For parties related by blood or adoption) 1/1/ Marriages performed between June 17, 2008 and November 4, 2008 remain valid. 2 Applicable to some or all opposite-sex couples in addition to same-sex couples. 3 Connecticut's civil union law on October 1, 2010, and all existing civil unions were automatically converted to marriages, unless the unions had been annulled or dissolved prior to that date. 4 Delaware s civil union law on July 1, 2013, and all existing civil unions were automatically converted to marriages as of July 1, 2014, unless the unions had been annulled or dissolved prior to that date. 5 As of December 2, 2013, new reciprocal beneficiary relationships are not available to same-sex couples eligible to marry. 6 The Maine legislature passed legislation legalizing same-sex marriage in However, the law was challenged by a ballot measure, which passed in November 2009 and repealed the law. In November 2012, voters approved Question 1, a referendum that enacted legislation to remove the state's existing prohibition on same-sex marriage and allow the state to issue marriage licenses to same-sex couples. 7 In New Hampshire, civil unions that were not dissolved, annulled, or merged into a marriage by January 1, 2011 were deemed a marriage as of that date. 8 As of October 21, 2013, both civil unions and same-sex marriages are recognized in New Jersey. It is possible that there may be future legislation that would impact the status of civil unions in the future, but to date, no such action has been taken. 9 Effective February 19, 2007, same-sex or opposite-sex couples must be age 62 or older and meet the remaining eligibility requirements of the Domestic Partnership Act to register as domestic partners in New Jersey. 10 When Rhode Island s same-sex marriage law took effect on August 1, 2013, same-sex couples were no longer able to establish civil unions, but existing civil unions (established before August 1, 2013) will continue to be recognized in Rhode Island. 11 Utah and the federal government also recognize over 1,000 same-sex marriages entered into in the period between December 20, 2013 and January 6, When Vermont's same-sex marriage law took effect on September 1, 2009, same-sex couples were no longer able to establish civil unions, but existing civil unions (established before September 1, 2009) continue to be recognized in Vermont. Couples with existing civil unions are permitted to marry one another, as civil marriage does not dissolve the civil union. 13 Effective June 30, 2014, one partner of a same-sex or opposite-sex couple must be age 62 or older and the couple must meet the remaining requirements to register as domestic partners in Washington State. Those registered same-sex domestic partnerships already in existence provided they have not been dissolved, annulled, or are legally separated before June 30, 2014 where neither party is at least age 62 will be automatically merged into a marriage as of June 30, Same-sex marriages that took place in June 2014 will also be recognized by the state. This report was compiled by the Legislative Reporting Team 6

7 About Aon Hewitt Aon Hewitt empowers organizations and individuals to secure a better future through innovative talent, retirement and health solutions. We advise, design and execute a wide range of solutions that enable clients to cultivate talent to drive organizational and personal performance and growth, navigate retirement risk while providing new levels of financial security, and redefine health solutions for greater choice, affordability and wellness. Aon Hewitt is the global leader in human resource solutions, with over 30,000 professionals in 90 countries serving more than 20,000 clients worldwide. For more information on Aon Hewitt, please visit Aon plc This document is intended for general information purposes only and should not be construed as advice or opinions on any specific facts or circumstances. The comments in this summary are based upon Aon Hewitt s preliminary analysis of publicly available information. The content of this document is made available on an as is basis, without warranty of any kind. Aon Hewitt disclaims any legal liability to any person or organization for loss or damage caused by or resulting from any reliance placed on that content. Aon Hewitt reserves all rights to the content of this document.about Aon Hewitt Risk. Reinsurance. Human Resources.

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