Supreme Court Strikes Down Defense of Marriage Act:Implications for Gay Spouses under the Family Medical Leave Act

Last Wednesday, June 26, 2013, in the landmark 5-4 decision of United States v. Windsor, the U.S. Supreme Court struck down the federal Defense of Marriage Act (“DOMA”) as unconstitutional.  Signed into law in September 1996, DOMA defined marriage as between a man and a woman and, therefore, codified the non-recognition and discrimination of same-sex marriages for all federal purposes.  As such, DOMA denied many coveted federal rights and benefits to gay couples who were legally married in their states, including Social Security survivor benefits, insurance benefits, the filing of joint tax returns, and family medical leave to name just some.

Among other important protections, the Family and Medical Leave Act (“FMLA”) allows eligible employees to take up to 12 weeks of unpaid leave in a 12-month period in order to care for the employee’s “spouse” who has a serious health condition.  Prior to the Windsor decision, as a result of DOMA, it was clear that an otherwise eligible employee could not qualify for such spouse-related leave under the FMLA even if the employee was in a state-recognized same-sex marriage because federal law refused to recognize the existence of that union.

Now, since the Supreme Court has struck down DOMA, same-sex spouses in states that recognize same-sex marriage will have the benefit of FMLA leave to care for their spouses during the difficult time of a serious health condition.  Unfortunately, same-sex couples who happen to live in states that refuse to recognize same-sex marriages will continue to be denied these benefits until their states act to approve gay marriage.