The federal Defense of Marriage Act (DOMA) defines "marriage" as between one man and one woman, thereby restricting the definition of "spouse" to an opposite sex partner for purposes of federal law and benefits. With the state laws varying so dramatically in this arena, the rights available to same-sex partners--particularly in the workplace--are often hard to determine and may differ even from business-to-business let alone from state-to-state.

State Differences

California, Massachusetts, and more recently, Connecticut, can issue marriage licenses to same-sex couples (October 2008). New York's governor, David Paterson, in May 2008 directed state agencies to recognize same-sex marriages performed in other states. Vermont, New Jersey, and New Hampshire recognize "civil unions." Varying "domestic partnership" laws extend rights to unmarried couples, including same-sex couples, in Hawaii, Maine, Oregon, Washington, Maryland, and the District of Columbia. Rights under domestic partnerships and civil unions are recognized only in the state or district where the individuals reside. Even though same-sex marriage is possible in California, the state continues to recognize domestic partnerships for same-sex couples, and for opposite-sex couples in which one of the partners is over 62 years of age.

Rights to Health Coverage

Generally, employers can decide whether to provide health care coverage to employees, and whether to extend that benefit to spouses. No federal law prohibits employers from providing benefits to employees' same-sex partners or spouses; neither does any federal law require it. Whether your employer is "fully-insured" or "self-insured" impacts what benefits you're entitled to as a same-sex spouse or partner. If your employer is self-insured (assumes the costs and risks of insuring its employees rather than buying insurance from an insurance company), its health coverage is governed by federal law and regulation, such as DOMA.

On the other hand, an employer who purchases health insurance coverage from an insurance company is considered "fully insured" and must comply with the laws of the state where it is located. Some states such as, California, New Jersey, and Hawaii, which recognize same-sex relationships, prohibit discrimination in benefits between same-sex and heterosexual couples.

In California and Massachusetts, employers with state-regulated health plans must extend coverage to same-sex spouses of employees if they do so for opposite-sex spouses. Additionally, in California, health care service plans and insurers must provide health care coverage to domestic partners that is equal to the coverage provided to spouses.

California and some cities and counties (for example, Los Angeles, San Francisco, Miami Beach, and Seattle) have equal benefit ordinances which require that employers with state or municipal contracts of at least a certain amount provide the same benefits to employees' domestic partners as are provided to spouses.

Income Tax and your Health Benefits

Generally, employer-provided health coverage benefits are exempt from both federal and state income and payroll taxes. However, due to federal law, health benefits provided to a domestic partner or same-sex spouse will be subject to federal income and payroll taxes.

California, Massachusetts, Connecticut, Oregon, Vermont, and the District of Columbia do not impose state income tax on employer-provided health benefits to same-sex partners and/or spouses. In those states, employers have to perform two sets of calculations to determine an employee's taxable income-one for federal tax purposes and one for state. In California and Massachusetts, same-sex spouses and opposite-sex spouses file state taxes in the same way. Registered domestic partners must use the same filing status as married couples in California. For more information, visit California's Franchise Tax Board website.

Family and Medical Leave

The federal Family and Medical Leave Act (FMLA) provides for unpaid leave in order to care for a spouse with a serious health condition, among other reasons. Due to the DOMA, it does not apply to domestic partners (same- or opposite-sex) nor to same-sex spouses. Individual employers' policies, however, can provide family and medical leaves to employees in same-sex relationships, even if the law does not require them to do so.

Some states including California have family and medical leave laws similar to the FMLA, but which provide time off to care for a same- or opposite-sex partner or spouse. Massachusetts provides state employees unpaid leave of absence of up to 26 weeks for the same reasons as under the federal Family and Medical Leave Act, including to care for an immediate family member such as a spouse who has a serious health condition. Visit the National Conference of State Legislatures website for information on family and medical leave statutes in your state.

Laws Will Continue to Change

In November 2008, California voters will consider a constitutional amendment that would prohibit "marriage" between same-sex individuals. There are other laws and policies throughout the country that are changing or evolving. To confirm the status of health care coverage for same-sex partners or spouses, its tax consequences, and family and medical leave, get in touch with your federal or state labor department, tax agency, or department of insurance.