March 27, 2015 – A new Department of Labor regulation took effect today, expanding the definition of “spouse” in the Family and Medical Leave Act (“FMLA”) to include same-sex partners who were married in states – regardless of whether the couple’s current state of residence recognizes same-sex marriage. However, four states that do not recognize such marriages obtained an injunction from a federal court in Texas blocking the implementation of the regulation in those states.
The FMLA does not clearly indicate whether same-sex spouses are included. It rather generically defines “spouse” as “a husband or wife, as the case may be.” A Labor Department rule passed in 1995 clarified that the “law of the State where the employee resides would control for the purpose of determining eligibility for FMLA spousal leave.” So a person who married an individual of the same sex in Massachusetts (which recognizes gay marriage) and later moved to Nebraska (which does not) would not be eligible for FMLA leave in Nebraska.
The new regulation replaces the “place of residence” rule with a “place of celebration” rule, meaning that a person is a “spouse” for FMLA purposes if the person’s marriage was legally recognized in the jurisdiction where it was entered into. Thus, the spouses in a same-sex marriage entered into in a state that recognizes such marriages will be eligible to take FMLA leave to care for one another without regard to whether any state they move to in the future recognize same-sex marriages.
The Labor Department (and many commentators) believed that this change would bring FMLA regulations into compliance with the Supreme Court’s 2013 United States v. Windsor decision. In Windsor, the Court struck down as unconstitutional section 3 of the Defense of Marriage Act (“DOMA”), which defined “marriage” and “spouse” to exclude same-sex couples for purposes of all federal regulations. The Court held that “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities.”
Despite this apparently sweeping endorsement of marriage equality, the Court did not have the opportunity to strike down all of DOMA, since only section 3 was at issue in Windsor. Thus, the Windsor decision left in place section 2, ironically referred to by some as the Full Faith and Credit Statute:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between person of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
Relying primarily on the continuing viability of this statute, four states (Texas, Arkansas, Louisiana, and Nebraska) filed suit on March 18, 2015 in the Northern District of Texas, seeking a injunction preventing the Labor Department’s place of celebration rule from taking effect. Each of the plaintiff states has laws refusing to recognize same sex marriages entered into in other states. For example, a Louisiana statute provides that “[a] purported marriage between persons of the same sex violates a strong public policy of the state of Louisiana and such a marriage contracted in another state shall not be recognized in this state for any purpose, including the assertion of any right or claim as a result of the purported marriage.”
Thus, the district court framed the issue before it as “whether the [Labor] Department exceeded its jurisdiction by promulgating a Final Rule that requires the Plaintiffs to violate the Full Faith and Credit Statute and/or state law prohibiting the recognition of same-sex marriages from other jurisdictions.” The court found that the Department had exceeded its authority – but recognized that imminent action by the Supreme Court may well change this result.
In reaching its holding, the court stated that DOMA made unmistakably clear that Congress intended to define marriage exclusively as being between a man and a woman. Further, “Congress has not delegated to the Department the power to force states defining marriages traditionally to afford benefits in accordance with the marriage laws of states defining marriages traditionally to afford benefits in accordance with the marriage laws of states defining marriage to include same-sex marriages.” The court granted the plaintiff states’ request for a preliminary injunction temporarily blocking the rule from taking effect.
The district court’s order is likely to have limited impact. First, the ruling affects only employees and employers in four states. Second, the court has thus far issued only a preliminary – not a permanent – and injunction. The plaintiff states must meet a higher burden of proof and persuasion to permanently block the rule from taking effect. Finally, the laws underlying the plaintiff states’ position are rapidly being invalidated. For instance, a federal court has held unconstitutional the provisions of the Texas Constitution and Family Code limiting marriage to a man and a woman (though that ruling is currently on appeal). More importantly, the Supreme Court will hear arguments on April 28, 2015 on the issues of whether the federal constitution requires all states to grant marriage licenses to same-sex couples and to recognize same-sex marriages lawfully entered into in other states. The Court is widely expected to answer both questions in the affirmative.