Barran Liebman 
Oregon Law Firm
Oregon Court Strikes Down Same-Sex Marriage Ban:What Does It Mean for Employers?
Today, the federal court for the District of Oregon struck down Oregon’s 2004 state constitutional amendment defining marriage as solely between one man and one woman. Oregon now becomes the latest state to recognize same-sex marriages performed within its own borders.
Today’s decision will impact employers in a number of ways as there is no longer a conflict between the lawfulness of same-sex marriage under Oregon and federal law. For FMLA, ERISA, and other federal and state law purposes, Oregon will recognize same-sex marriages as valid whether lawfully performed in another state, like Washington, or in another country, like Canada, or now, in Oregon. Spouses in Oregon are now entitled to all the legal protections associated with marriage, whether their marriage is a same-sex marriage or an opposite-sex one.
Understanding what this change means for employers begins with understanding the legal framework governing recognition of same-sex marriage before today’s decision.
Last June, in United States v. Windsor, the United States Supreme Court declared the federal Defense of Marriage Act (DOMA) unconstitutional. DOMA, like Oregon’s 2004 state constitutional amendment, defined marriage as a legal union between “one man and one woman” and defined “spouse” as “a person of the opposite sex.” Accordingly, when the Court declared DOMA unconstitutional, the ruling essentially provided that all legally married individuals would enjoy the same rights and privileges, regardless of whether their marriages were opposite-sex or same-sex marriages. Some uncertainty remained, however, because of variations in state approaches to same-sex marriages. For example, if a same-sex Oregon couple married in Washington, a state which began authorizing same-sex marriages in late 2012, would they be considered legally married under federal law given Oregon’s 2004 ban on same sex marriages? The result has been a patchwork of protections under various federal laws.
Under the federal Employee Retirement Income and Security Act (ERISA), for instance, the Department of Labor (DOL) counsels employers that a marriage should be considered valid if valid in the state in which it was performed. Therefore, the same-sex Oregon couple married in Washington is entitled to any protections provided under ERISA to opposite-sex spouses. For example, if an ERISA benefit plan specifies that certain benefits are available to spouses, those benefits must also be made available to the same-sex Oregon spouse married in Washington.
Under the Family and Medical Leave Act, on the other hand, DOL guidance provides that a marriage is deemed valid only if it is deemed valid in the employee’s state of residence. Therefore, before today’s decision, the same-sex Oregon spouse would not have qualified as a spouse under FMLA because the Washington marriage was not deemed lawful in Oregon. But to complicate matters even further, in October 2013, the State of Oregon announced that, despite the 2004 ban, state agencies would begin recognizing same-sex marriages performed in other states. Arguably, our example same-sex Oregon couple was then deemed eligible to receive FMLA’s spousal protections despite the DOL guidance.
Going forward, employers may confront more complex questions, such as whether to provide certain benefits only to spouses and no longer to provide those benefits to spouses and to registered domestic partners. It remains to be seen whether Oregon will abolish registered domestic partnership status and require couples to marry to obtain the legal protections traditionally associated with marriage or if certain registered domestic partnerships will automatically convert into marriages, as is the case in Washington. For now, though, Oregon and Washington employers should treat same-sex marriages just as they do opposite-sex marriages.