Defense of Marriage Act

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Defense of Marriage Act (DOMA)

The Defense of Marriage Act is a federal statute which mandates that the term "spouse" be interpreted in all federal laws (including regulations) to mean only an opposite sex spouse.


Key Provisions

DOMA has only two provisions.

Recognition of Same-Sex Marriage Created in Other State

The first is found at 28 USC 1738C.

"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 persons 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."

Interpretation of Federal Law to Exclude Same-sex Marriage

The second is found at 1 USC 7.

"Definition of 'marriage' and 'spouse'" "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

Implications for Private Employers

Because most employer benefit plans rely on federal Tax Code provisions to obtain advantageous treatment, such plans (or participants in such plans) can be adversely affected if they recognize same-sex marriages.

Pension Plans

A qualified plan cannot require the same-sex spouse or domestic partner of a participant to take a QJSA.

Cafeteria Plans

Employers may not permit an employee to use a cafeteria plan to purchase benefits (including the payment of health insurance premiums) for a same-sex spouse or partner with pre-tax dollars (unless the same-sex spouse qualifies independently as a dependent). Allowing pre-tax dollars to be used for same-sex partners may disqualify the entire plan.

Health Plans

Insurance premiums paid by an employer to insure a same-sex spouse are taxable income to the employee. Benefits from a self-funded plan to a same-sex spouse are also taxable.

Social Security

Same-sex spouses are not eligible for spousal Social Security benefits.

Guidance