NEW YORK -- Among those fighting for the recognition of gay marriage, the prospect of the Supreme Court striking down the federal Defense of Marriage Act prompts hopes for equal treatment: The same medical insurance and retirement benefits companies and the government now offer to married straight couples could soon be available to gays and lesbians.
Should the highest court reject the law, gay and lesbian couples would remain vulnerable to discrimination in terms of employer-provided benefits, legal and financial experts told The Huffington Post.
Even if DOMA disappears, and with it the official federal definition of marriage as the union of one man and one woman, employers could still exclude gay couples from their benefit plans, said Todd Solomon, a partner with the Chicago law firm McDermott, Will & Emery.
“DOMA is a crutch for denying benefits, but the other part is employers actually providing coverage,” Solomon said. “I think some employers will absolutely say, ‘Our plan only covers opposite-sex spouses.’”
Solomon pointed to a case in Pennsylvania federal court, Cozen O’Connor P.C. v. Tobits et al, that sought to do just that, denying death benefits to the surviving spouse of a legally married same-sex couple.
“There’s complexities as to whether or not each state would move on this. There’s many things the Supreme Court might address, but leave unsettled,” said Catherine Stamm, a senior associate at human resources firm Mercer who has closely followed how the federal court's decision could change the benefits employers provide employees in same-sex unions. “There might be a legislative push to change the Constitution,” she added.
Other experts who have dealt with issues facing same-sex couples disagreed.
“Certainly, if DOMA is struck down, you’re going to see employers in states that allow same-sex marriage having to provide the benefits,” said Brian Moulton, legal director of the advocacy group Human Rights Campaign.
Kathy Bauer, a financial adviser at Ameriprise Financial, said many of her clients in same-sex relationships are accustomed to uncertainty when managing their financial futures. As courts around the country have weighed in on gay marriage in recent years, she has had to help clients navigate the constantly changing landscape.
“One of the biggest issues with planning is you have to plan with what the law is right now," she said. "If you’re in California and they allow marriage and then they repeal it, what can a couple do to plan?"
“Sometimes it’s an information overload. There’s so many 'what if' scenarios that it paralyzes people and they don’t know what to do with it,” Bauer added. “Most of my clients have dealt with this all their lives. And they’ve kind of gotten over that. They handle the cards they’re dealt."
Jennifer Hatch, president of Christopher Street Financial, which has specialized in working with gay New Yorkers since 1981, said facing special challenges when making long-term plans is nothing new for same-sex couples.
In the early 1980s, at a time when there were no laws in the U.S. forbidding discrimination against gays and lesbians, they “just wanted to know they were working with someone that respected and understood them," Hatch said.
While much has changed over the course of three decades, Hatch said, “For our clients, the planning has been always much more difficult."