News & Updates

Supreme Court Decision on DOMA Clears Way for FMLA Application to Same-Sex Spouses June 26, 2013

In a landmark decision today, United States v. Windsor, the Supreme Court decided by a 5-4 decision that § 3 of the federal Defense of Marriage Act (DOMA) is unconstitutional as a deprivation of the liberty of the person protected by the due process and equal protection clauses of the Fifth Amendment.

The Windsor Case was commenced in the U.S. District Court for the Southern District of New York by Edith Windsor. Edith Windsor and her spouse, Thea Spyer, were married in a ceremony in Ontario, Canada in 2007. New York State recognized their marriage. When Spyer passed away in 2009, Windsor sought to claim the federal estate tax exemption for surviving spouses, but she was prevented from doing so under DOMA. 

DOMA was enacted in 1996 before same-sex marriage was legal in any state. Section 3 amends the Dictionary Act, which provides rules of construction for over 1,000 federal laws and all federal regulations to define marriage as a legal union between one man and one woman and spouse as a husband or wife of the opposite sex. 

The Family and Medical Leave Act (FMLA) (29 U.S.C. § 2601 et seq.) is one such federal law to which DOMA applies. The FMLA defines spouse as “a husband or wife as the case may be” (29 U.S.C. § 2611) and the FMLA regulations provide that spouse means a husband or wife as defined or recognized under state law for the purposes of marriage in the state where the employee resides, including common law marriage in states where it is recognized (29 C.F.R. § 825.102). Prior to today’s ruling, the Department of Labor took the position that because the FMLA is a federal law, the federal definition of spouse as established under DOMA applied, thereby denying application of the FMLA to same-sex spouses. Today's Supreme Court decision in United States v. Windsor will now clear the way for application of the FMLA to same-sex spouses in states that recognize same-sex marriage, such as New York. 

In finding DOMA unconstitutional, the Supreme Court acknowledged that the regulation of domestic relations is “an area that has long been regarded as a virtually exclusive province of the States.” (citing Sosna v. Iowa 419 U.S. 393, 404 (1975) (internal quotations omitted). Indeed, it noted that the “definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the protection of offspring, property interests, and the enforcement of marital responsibilities” (internal citations and quotations omitted). Importantly, it recognized that New York sought to give further protection and dignity to the bond of same-sex marriages, and “DOMA seeks to injure the very class New York seeks to protect” through its “unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage.” 

As a result of the Windsor decision, in New York, the District of Columbia and the 11 other states that recognize same-sex marriage, the definition of spouse under the FMLA will now be expanded to include a husband or wife of the same sex, and qualified employees must be permitted to take leave under the law to care for their same-sex spouse. 

Employers covered by the FMLA that operate in states with marriage equality statutes are encouraged to review their FMLA policies and paperwork and revise, if necessary, in order to comply with this decision. 

For more information on the impact of this decision on your organization, please contact: