November 27, 2012

If DOMA is unconstitutional, what kind of past employee benefits will need to be paid?

Don't assume the effect of a new decision will be only prospective. Consider this report of a ruling by the Judicial Council of the Ninth U.S. Circuit Court of Appeals:
... Christopher Nathan, 39, of San Francisco, a law clerk for U.S. Magistrate Maria Elena James, sought [health insurance] coverage for his spouse, Thomas Alexander, 40.... [H]e was turned down by the Administrative Office of the U.S. Courts because the 1996 law bars federal recognition of same-sex unions.

In April, Chief U.S. District Judge James Ware said the denial violated the federal court's rules against discrimination based on sexual orientation and gender, and ordered the court to reimburse Nathan for the costs of buying private insurance.

The Judicial Council, the final authority in the administrative review process, went a step further in this week's order and said DOMA has been held unconstitutional by a San Francisco federal judge in another employee's case. The three-judge panel ordered the court [that is, his employer] to determine how much it owes Nathan and then pay him within 10 days.

48 comments:

chickelit said...

Reparations!

Herb said...

most large corporations have been providing benefits for partners for years.

Pogo said...

Another SCOTUS tax.

Quelle surprise.

Sebastian said...

Great. How many companies will that put out of business?

X said...

do single employees get compensated too? if not, can single applicants be favored because they cost the taxpayers less?

Shouting Thomas said...

Don't worry.

The rich, straight white guys can afford to pay anything!

Revenge!

X said...

cut this guy back to 29 hours a week.

Lyssa said...

Would this apply to non-federal government employees?

I'm thinking it's possible, but not likely - Shouldn't they get a pass for following the law at the time? I wonder if DOMA has any provisions addressing discrimination in it.

I'm pretty sure that it wouldn't apply to anywhere where same sex marriage (actual marriage, not civil unions) doesn't exist.

SGT Ted said...

They should get none.

m stone said...

pay him within 10 days

That's angry compensation. The stick-it-in-your-face kind. Not becoming to a three-judge panel.

Darleen said...

And wait until laws against polygamy are found unconstitutional. Think of all those lawsuits forthcoming!

SGT Ted said...

This just shows that it's always about access to free money from other people.

MadisonMan said...

So you pay a retroactive penalty for following the law as it was written.

Ho-kay.

Luke Sneeringer said...

This is a good example of why, although I support gay marriage, I'm really worried about its being declared a right based on fourteenth (rather than first) amendment grounds.

AJ Lynch said...

I bet they go after retro social security benefits next.

AJ Lynch said...

"Reparations"!

Chickelit - that thought crossed my mind too.

Calypso Facto said...

So you pay a retroactive penalty for following the law as it was written.

Exactly. Punished for NOT breaking the law. Unbelievable. If a higher court reverses, will he have to pay the benefits back?

And unless there's a specific provision allowing monetary lawsuits (which I doubt in DOMA), shouldn't the Federal Gov't have sovereign immunity?

rehajm said...

Meh. The nation begins the process of banana republic insolvency within a decade. Given the context what's the harm in shuffling the deck chairs around a bit?

sydney said...

So you pay a retroactive penalty for following the law as it was written.

Those who are sworn to uphold the law should be careful about this sort of thing. They are slowly eroding the public's faith in the rule of law. A people who have no faith in the law of their land can only be controlled by tyranny.

dbp said...

By this theory, if the Supreme Court determined that the death penalty is unconstitutional: Should govornors of states that carried out this penalty be tried for murder?

Lyssa said...

They are slowly eroding the public's faith in the rule of law.

Slowly?

Marshal said...

Calypso Facto said...
So you pay a retroactive penalty for following the law as it was written.

Exactly. Punished for NOT breaking the law. Unbelievable. If a higher court reverses, will he have to pay the benefits back?


This of course presumes following the law is a priority. The only decision rationale that fits the facts is "a protected class didn't get something it wanted so someone must pay them". One suspects we will not see an article from Dalhia Lithwick bemoaning the negative impact to the public's confidence in the judiciary.

Ramesees Ram said...

I mean - if you're not already, buy guns, ammo, and canned food. This amount of benefit spending is not sustainable.

Dante said...

Yes! The country needs to increase the number of able bodied people who don't work and get benefits.

X said...

as long as we are revisiting the rules, what's the rationale for partner benefits?

Pogo said...

"They are slowly eroding the public's faith in the rule of law."

I have zero faith left in this nation of men, not laws. Caprice, fad and envy drive our every move, each more penurious than the last.

SCOTUS is the worst among them, whose postmodern decisions suggest the Red Queen as their primary author.

Bryan C said...

"most large corporations have been providing benefits for partners for years."

Though many only recognize same-sex domestic partners. I don't see how that's even legal, or why the gender of your partner is the government's business.

edutcher said...

There are a great many firms that recognize same sex, but not opposite sex, partnerships. Going to be fun to see how that works out.

Levi Starks said...

"The rational for benefits"
I'm guessing it dates back to pre WW2 days in which a "family" typically consisted of one man, one woman and potentially children. There was a division of labor that required one spouse (usually the man) outside the home, leaving the other spouse (usually the woman) to perform work inside the home. Childcare I believe would have been a primary driver, as well as care for elderly family members.
Flash forward to a post WW2 era where 50% of the outside the home workforce is now female, paid childcare is the norm, and we send our parents to nursing homes (or the little prefab out back) and it looks like we've just about managed to make the 2 person household obsolete.
I expect the primary driver has always been an encouragement of procreation. We need to replenish our nation with a natural resource we call "babies" So we legitimize relationships which offer the possibility of procreation. Even if that possibility is only symbolic, because even many heterosexual unions will, or can not result in children. (due to obvious factor such as age, or health limitations)
So I'm willing to make a compromise, for the sake of taxes you can choose any other competent adult with whom to share your tax burden, no questions asked.
However I'm not willing to place that same burden on the employer, While I fully support the governments role in preventing employers from discrimination in hiring based on clearly demonstrable attributes such as race, I'm less compelled to force them to follow the same rules regarding "less tangible" differentiators.
And I think it's wrong to force employers to provide a particular level of benefits for an increasing classes of employees.
The company is free to offer the benefits it believes will attract the employees it wants, and potential employees are free to accept or reject (by choosing a different employer) the benefits offered.

Levi Starks said...

"The rational for benefits"
I'm guessing it dates back to pre WW2 days in which a "family" typically consisted of one man, one woman and potentially children. There was a division of labor that required one spouse (usually the man) outside the home, leaving the other spouse (usually the woman) to perform work inside the home. Childcare I believe would have been a primary driver, as well as care for elderly family members.
Flash forward to a post WW2 era where 50% of the outside the home workforce is now female, paid childcare is the norm, and we send our parents to nursing homes (or the little prefab out back) and it looks like we've just about managed to make the 2 person household obsolete.
I expect the primary driver has always been an encouragement of procreation. We need to replenish our nation with a natural resource we call "babies" So we legitimize relationships which offer the possibility of procreation. Even if that possibility is only symbolic, because even many heterosexual unions will, or can not result in children. (due to obvious factor such as age, or health limitations)
So I'm willing to make a compromise, for the sake of taxes you can choose any other competent adult with whom to share your tax burden, no questions asked.
However I'm not willing to place that same burden on the employer, While I fully support the governments role in preventing employers from discrimination in hiring based on clearly demonstrable attributes such as race, I'm less compelled to force them to follow the same rules regarding "less tangible" differentiators.
And I think it's wrong to force employers to provide a particular level of benefits for an increasing classes of employees.
The company is free to offer the benefits it believes will attract the employees it wants, and potential employees are free to accept or reject (by choosing a different employer) the benefits offered.

hawkeyedjb said...

"Shouldn't they get a pass for following the law at the time?"

Well, no. The law is whatever we say it is, whenever we say it is.

This "following the law" shtick is getting old.

Pay up.

jimbino said...

Just think of the ramifications if singles and the childfree ever win recognition of the adverse treatment they have suffered since the beginning of the welfare state.

Once gay couples gain the right to join straight couples at the gummint tit, it is singles and the childfree who will be left to financially support all the marriage privileges and all the wanton breeding.

Emil Blatz said...

Nate b in da moneee!

Michael K said...

I thought ex post facto laws were unconstitutional. I guess not. Another reason not to hire someone.

lgv said...

The implications are huge. What if he didn't purchase health insurance and the spouse needed a transplant, paid out of pocket?



AJ Lynch said...

Piggybacking on LGV's earlier comment:

What if he didn't buy insurance and the partner died [of course that would be unlikely unless the evil Romney was involved]?

tim maguire said...

Michael, it's not an ex post facto law. If the court determines DOMA is unconstitutional, then it was never the law.

It's hard to see how this ruling could be applied to the private sector--not that businesses won't get reamed, there will just have to be a different legal theory behind their fleecing.

damikesc said...

This country cannot collapse fast enough.

gutless said...

Our government flirts with violence. Yes, it could happen here.

jr565 said...

do single employees get compensated too? if not, can single applicants be favored because they cost the taxpayers less?

That would only be fair.

Sam L. said...

ex post facto ruling. Bad law.

Lydia said...

Levi Starks said: We need to replenish our nation with a natural resource we call "babies" So we legitimize relationships which offer the possibility of procreation. ...So I'm willing to make a compromise, for the sake of taxes you can choose any other competent adult with whom to share your tax burden, no questions asked.

Why not instead simply have tax benefits/advantages accrue only to those who actually have children in their household regardless of their marital/relationship status?

Kirk Parker said...

Apparently I'm with the majority here, who think 'zero' is the proper answer.

Good.

shenandoah said...
This comment has been removed by the author.
shenandoah said...

Textbook in how to make an identified victim's group less employable. But who wants to be an employee these days. Kinda identifies you as a loser. Whoa, I had no idea how many levels of meaning there are in that, some of which are pure irony and some of which are purely orthogonal. I think that's a sign of how crazy things have gotten. Y'know wouldn't it be nice to walk out the front door one day and run into a big bunch of common sense. Well, we can dream... even if it's a pipe dream.

Captain Curt said...

By the same logic, shouldn't the couple then be required to redo their income taxes for all those years and file retroactively as a married couple, paying at the (almost certainly) higher joint rate?

Ariful khan said...

employee benefit trust

Legallly reduce corporation tax and avoid income tax with the successor to the Emplyee Benefit Trust (EBT) the EFRBS II. Employee Benefit Trusts.

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