The nation’s employers are soon going to find themselves in an increasingly tough spot as married gay couples start avoiding jobs in states where their marriages are not recognized under state law.
I was reading a Tweet yesterday by Frank Rich, and it got me thinking:
The answer to Frank Rich’s question is: Maybe not too many, once companies realize that gay employees may now be at a distinct disadvantage working in states that do not recognize the marriages of legally-wed gay couples.
With the advent of last week’s Supreme Court decision striking down DOMA, and legalizing gay marriages in California, marriage suddenly became ‘real’ for the first time for many gay couples across America, even those already married. Why “real” now? Because in some ways, without the over 1,100 federal benefits that accrue to marriage, gay couples, even in states that permitted gay marriage, were married in name only. For federal tax purposes, and for Social Security, Medicare, and one thousand other federal services, gay couples were considered single, even if they were legally married.
That meant that the opportunity cost of working in an anti-gay, anti-marriage-equality state was simply the state benefits you were losing, not federal benefits – since no married gay couples in any state got federal benefits. Now they do. And that makes the cost of working in an anti-gay-marriage state that much higher for gay employees, and it’s one they may no longer be willing to accept.
While most federal federal marriage benefits define your marriage by the state you were married in, some, most notably Social Security and taxes, define your marriage by the state in which you live.
Chris Johnson at the Blade reports:
Some of these benefits, like Social Security survivor benefits and tax benefits, are in question because federal law governing these issues looks at a state where a couple lives as opposed to whether they were legally married. That means a gay couple that marries in a state like New York, but moves to Florida, won’t be able to apply for these benefits while living there.
The ACLU says that President Obama has some wiggle room here, but they weren’t entirely clear what wiggle room the President has for which programs:
James Esseks, director of the American Civil Liberties Union LGBT Project, said while explaining the decision that the Obama administration can interpret the rulings in a broad manner to ensure all federal benefits flow to married same-sex couples regardless of the state in which they live.
“In almost all contexts, the Obama administration has the ability and the flexibility to move to a rule where they look to the law of the state in which you got married, not the state in which you live,” Esseks said. “So we expect and hope that the federal government is going to update those rules … and that would mean that once you get married, you’re married for federal purposes forever. That’s what we think the right rule is, and that’s the rule we think the administration can get to.”
An employer that could be especially hard-hit is America’s, and the world’s, largest employer, the Defense Department:
The Department is also the largest employer in the world, with more than 2.13 million active duty soldiers, sailors, marines, airmen, and civilian workers, and over 1.1 million National Guardsmen and members of the Army, Navy, Air Force, and Marine Reserves. The grand total is just over 3.2 million servicemen, servicewomen, and civilians.
30% of Americans, or 93 million people, now live in states that have marriage equality. But what’s more important, every American now lives in a country that will recognize his or her legal gay marriage. That means 100% of gay Americans have something lose by working in a state in which gay marriage is not recognized.
It’s going to be very interesting to see what employers – and states – do next to stop a possible gay-business-flight from anti-gay states.