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Real Benefits for Women Now That DOMA Has Been Struck Down!

This post was originally published on the National Women’s Law Center’s blog. 

Written by Colette Irving, NWLC Intern; Emily Martin, NWLC Vice President and General Counsel; and Lauren Hartz, NWLC Intern. 

Today, the Supreme Court struck down the Defense of Marriage Act (DOMA), which provided that only a marriage between a man and woman would be recognized under federal law. The Court found that this provision of DOMA violated the Equal Protection Clause of the Constitution. This decision is historic in its recognition that the Constitution provides important protection against discrimination against same-sex relationships.

Moreover, this ruling will have a huge practical impact, providing access to important benefits previously denied to same-sex couples. As the Court wrote, “By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound.” The practical impact of this victory is particularly significant for women. Women make up about 53 percent of LGBT adults and 51 percent of same-sex couples, and women in same-sex couples are more likely than men to marry their partners. In fact, the Williams Institute found that 62 percent of same-sex couples who married or acquired some other type of formal legal status were female, in the eight states for which data is available.

Because women are more likely than men to be poor, female same-sex couples are at particular risk of financial instability. The Williams Institute compiled data from the 2000 Census and concluded that female same-sex couples face poverty at a rate of 6.9 percent. That rate is 4.0 percent for male same-sex couples and 5.4 percent for different sex couples [PDF]. Further, LGBT women are more likely than men to become parents and LGBT parents are more likely to live close to poverty. In striking down DOMA, and granting married same-sex couples access to federal benefits that provide increased financial stability, the Supreme Court has made it easier for these women, and all married same-sex couples, to make ends meet.

Twelve states give same-sex couples the freedom to marry, and approximately one-fifth of the U.S. population lives in a state that provides this freedom to marry or recognizes out-of-state marriages of same-sex couples. Here are just a few of the benefits and legal protections married women in same-sex relationships living in these states should expect to access:

  • Social Security: Certain benefits are available to the spouses, surviving spouses, and divorced spouses of workers covered by Social Security. Because of DOMA, in order to receive those benefits, spouses had to be different [PDF] sex spouses legally married in their state. While we may have to wait to see exactly how the federal government will proceed in implementing the decision today, all couples whose marriages are legally recognized in the state where they live should be able to receive these benefits.
  • Tax on Employer-Provided Health Benefits: Health insurance premiums paid by an employer for an employee and her spouse are usually excluded from that employee’s gross income. That means the employee does not pay taxes on the amount her employer contributes. Because of DOMA, same-sex spouses could not avail themselves of this tax benefit [PDF], which could mean $1,000 more paid in taxes [PDF] each year for these families. Now, all employees who are legally married in the state in which they live should be able to exclude these contributions from their income for federal tax purposes.
  • FMLA Leave: The Family and Medical Leave Act entitles employees to job-protected leave to care for children, spouses, and parents. DOMA has prevented same-sex married couples from taking FMLA leave to care for each other, even when they live in states that recognize their marriages. By striking down DOMA, the Supreme Court makes FMLA available to these couples.
  • Federal Employees Health Benefits: The Federal Employees Health Benefits Program provides health insurance to federal employees and members of their family, including their spouse and children. DOMA denied this insurance coverage to same-sex spouses of federal employees. The Supreme Court’s decision means that the federal government will provide health coverage to same-sex spouses whose home states recognize their marriages.
  • Immigration: Family unification is the cornerstone of our nation’s immigration policy. The Immigration and Naturalization Act allows United States citizens to petition for their children, spouses, and parents to be classified as “immediate relatives,” making them eligible for an immigrant visa and lawful permanent residence in this country. DOMA changed the federal government’s longstanding practice of looking to the law of the state where the marriage occurred to define spouse. This prevented gay and lesbian citizens from sponsoring their foreign partners for immigration benefits even when they were legally married under the law of the state where the marriage occurred. The Court’s decision restores this critical opportunity to bi-national same-sex couples.

The Court’s historic decision has tremendous significance for millions of gay, lesbian, bisexual, and transgendered Americans in affirming their right to equal protection under the law. This victory is important not only for its symbolism but also for its real-world impact. Now many same-sex married couples can access these critical federal benefits on equal footing.

The FMLA: Old Enough to Vote, but with Room to Grow

On the occasion of its anniversary, IWPR takes the opportunity to outline the main characteristics of the Family Medical Leave Act (FMLA) and its impact over the past 18 years.

by Kevin Miller

Saturday, February 5 marks the 18th anniversary of the day that President Bill Clinton signed the Family and Medical Leave Act (FMLA) of 1993 into law. The law requires that employers with 50 or more employees provide 12 weeks of job-protected leave to any employee with one year of job tenure who has worked 1,250 hours within the past year. The law does not require employers to pay employees during this leave, though employees can substitute existing sources of paid leave such as sick days and vacation time in order to receive pay during FMLA leave.

 

Job-Protected Leave

In the 18 years that the FMLA has protected the right of (some) American workers to take job-protected leave, it has helped millions: mothers taking maternity leave and new child leave, fathers taking new child leave, and workers taking medical leave or leave to care for ill or injured family members (a child, spouse, or parent). It remains the only federal law that gives Americans a right to time off work, helping Americans balance work and family.

Gender Neutral

Though FMLA leave can be taken for maternity-disability reasons, it can also be taken to care for a new child regardless of whether that child was born to the employee, born to the employee’s spouse, adopted, or fostered. Nowhere in FMLA is access restricted by gender since the law applies equally to men and women.

Limited Eligibility

A 2007 report from the U.S. Department of Labor found that in 2005, 76.1 million workers were eligible for FMLA-protected leave, or 54 percent of the workforce. Of the 65.6 million ineligible workers, 47.3 million worked at establishments too small to be covered and 18.3 million lacked the job tenure or hours-in-job to be eligible.

Unpaid Leave

The United States is one of only five nations (along with Lesotho, Liberia, Swaziland, and Papua New Guinea) whose workers lack a legal right to paid maternity leave. Australia, which previously guaranteed only unpaid leave, has introduced paid parental leave this year. Some American workers who are eligible to use FMLA leave are unable to afford taking unpaid time off from work: a 2000 survey commissioned by the Department of Labor found that among workers who said they needed FMLA leave but did not take it, 78 percent said that they could not afford to do so without pay.

Unequal Outcomes

Despite the gender neutral language of the FMLA, both the eligibility restrictions and the unpaid nature of the leave contribute to gender inequality. Men and women in the workforce are equally likely to work at a covered employer, but women with young children are 16 percent less likely to meet eligibility requirements than are men with young children. Among eligible workers with young children, however, women are more likely than men to take leave—76 percent compared to 45 percent. The unpaid nature of FMLA leave means that married couples may need to choose one parent to take leave while the other continues to work (and receive pay).

The average full-time female worker made 77 cents on the dollar compared to male workers in 2009, so it often makes financial sense for wives to take leave (or leave work entirely) while husbands remain on the job, a strategy that can leave women earning less for years after they eventually re-enter the labor force.

Room to Grow

Passage of the FMLA took eight years of hard work by advocates, researchers, and policymakers. During that time, provisions for paid leave were removed from the proposed legislation as a compromise, with the implicit promise that the law would be revisited and strengthened over time. The FMLA has been amended in recent years, but only to improve access to unpaid leave for airline employees, and military personnel and their families.

Successful efforts to provide paid leave have been limited to the five states with Temporary Disability Insurance systems (California, Hawaii, New Jersey, New York, and Rhode Island), with California and New Jersey expanding their systems to include paid family leave. A recent study of California’s paid family leave system found that implementation of the system had minimal impact on employers and greatly expanded leave for workers in low-quality jobs.

 

The signing of the FMLA in 1993 was a watershed event for American workers, finally providing Americans a job-protected right to time off work. The FMLA has helped millions of Americans take leave from work to care for a new child or family member. However, millions of Americans are not covered by or eligible under the FMLA, and some who are eligible cannot afford to take unpaid time off work. Advocates and policymakers continue to work to expand access to leave that is both job-protected and paid, with the hope that one day Americans will no longer be forced to choose between their jobs and their families.

Kevin Miller is a Senior Research Associate with the Institute for Women’s Policy Research.

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