The Supreme Court's Decision on DOMA. An Uncertain Future for Oklahoma Employers.

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The United States Supreme Court’s recent ruling in United States v. Windsor declared the Defense of Marriage Act ("DOMA") unconstitutional.  Windsor mandates federal recognition of same-sex marriages from the twelve states and the District of Columbia that sanction them.  While Windsor directly affects thousands of state-sanctioned same-sex spouses in other states, the ruling likely has little immediate impact in Oklahoma.  However, employers should be aware of Windsor’s future implications. 

The Family Medical Leave Act (FMLA) allows an employee to take up to 12 weeks of leave to, among other things, care for a seriously ill spouse.  FMLA regulations state that “spouse” means “a husband or wife” as the state of residence defines it.  29 C.F.R. § 825.122(b).  However, the Department of Labor (DOL) has taken a more restrictive view interpreting the FMLA to include the DOMA definition of “spouse” (a person of the opposite sex). 

Under the DOL view, even where same-sex marriage was valid, a same-sex spouse was not a spouse for FMLA purposes.  Windsor changes that.  Now an employer must look to the law of the state of residence to determine whether a particular person is a spouse.   But, because the definition of spouse depends on the state of residence at the time the determination is made, when a same-sex couple moves from a state that recognizes their marriage to one that does not, the couple loses the protections of the FMLA.  

Undecided by Windsor is whether a state that has not legalized same-sex marriage must recognize a marriage from a state that has.  Oklahoma statutorily forbids recognition of same-sex marriages performed in other states.  Okla. Stat. tit. 43, § 3.1.  However, the Tenth Circuit Court of Appeals has held that an Oklahoma statute preventing recognition of valid adoptions by same-sex couples in other states is unconstitutional under the Full Faith and Credit Clause.  Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007).  Applying this analysis, § 3.1 would likely prove unconstitutional.

If Oklahoma eventually must recognize the validity of same-sex marriages performed elsewhere, a same-sex couple would be entitled to the protections of various laws including the FMLA.