Friday, September 20, 2013

Focus is confused (or misleading) regarding recent Department of Labor guidance

On Wednesday the Department of Labor announced guidance that employers should treat legally married gay couples as married irrespective of residence with respect to pension plans governed under ERISA.

ERISA, which was signed into law by President Ford, regulates the way in which corporate pension plans are administered. Without regulations, employers demonstrated that pension plans were routinely underfunded.

Pension plans pay benefits in accordance with ERISA regulations. In simplest terms a plan must ordinarily pay a surviving spouse the employee's benefit until his or her death. Therefore, it becomes necessary to define what a spouse is solely as it pertains to US government regulated pensions.

The decision in Windsor answers that question. The US government must consider as married any gay couple that is legally married in a state that recognizes same-sex marriage. If they choose to do so, states can enforce residency requirements for marriage. Other states may choose not to recognize same-sex marriages at all. However, once legally married the US government is agnostic about residency. This makes perfect sense.

Not surprisingly, Focus on the Family "Judicial" Analyst Bruce Hausknecht disagrees Huasknecht claims that this represents a rule change while circumventing the rule making process. That is incorrect. This is guidance, based on Windsor, with respect to what constitutes a "spouse." Hausknecht should also know that federal rule making does not require congressional approval. Hausknecht goes on to state:
This action espouses a politically desired interpretation of the Windsor decision that isn’t justified; namely that out-of-state same-sex marriages must be recognized in states which have only recognized one man, one woman marriages … This ‘guidance’ makes a mockery of states’ rights which, ironically, formed the basis for Justice Kennedy’s opinion striking down the Defense of Marriage Act. It is the height of arrogance to turn the Windsor opinion upside-down into a federal imposition of same-sex marriage on unwilling states.
Sorry Bruce but that is just plain wrong. Federal laws apply uniformly across state lines. The federal government is not imposing marriage recognition on any state. However it is saying that the married, surviving spouses of pensioners shall be entitled to a continuation of their benefits. This is not only fair but logical. No company is required to provide pension benefits. However, once they do they fall under the purview of ERISA. What I find arrogant is states not recognizing same-sex marriage because of religious fundamentalism. We are supposed to be a secular nation with a separation of church and state.

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