With the legalization of same-sex marriage in New York this past June, the gay marriage debate has once again thrust itself into the spotlight. In California, only gay marriages performed before the passage of Proposition 8, which defined marriage as a union between one man and one woman, on November 4, 2008 are recognized by the state. Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York, and the District of Columbia currently grant marriage licenses to same-sex couples. Although these states have uniformly legalized gay marriage, their health care laws regarding alternative family structures are not uniform.
Since there is no nationwide law regarding the legality of same-sex marriage, no single law regarding the health insurance policies of same-sex couples exists. The federal Defense of Marriage Act (DOMA), signed into law in 1996 by President Bill Clinton, states that when federal laws refer to “marriage” or “spouses” marriage is defined as the “legal union between one man and one woman” and a spouse is only “a husband or wife” of the “opposite sex.”
This means that federal employees, whose healthcare is governed directly by federal law, cannot receive health insurance coverage for their same sex partner. Karen Golinski, who worked for the Ninth Circuit Court of Appeals and was legally married in California, attempted to add her wife to a family health care plan in 2008. When her application was denied, Golinski sued, and in 2009, the insurance denial was overturned by the courts. However, the Office of Personnel Management refused to allow Golinski’s wife to be covered by her insurance, citing that this would be in violation of DOMA. As of September 2011, the case still has not been resolved and is scheduled to return to trial in San Francisco.
Health insurance laws, even in heterosexual unions, are complex. Coverage can vary based on whether the insurance is through a spouse employed at the state, municipal, or county level, or self-employed. Gay and Lesbian Advocates and Defenders (GLAD) state that “whether an employee can legally force a private-sector employer to provide same-sex spousal benefits depends upon the type of insurance offered and, in some cases, the terms of the insurance contract itself.” Due to the sovereignty of federal law over state law, private employers whose health plans are governed by federal law can decide whether or not to provide coverage to married gay couples. In Massachusetts, these employers can cite DOMA in denying coverage to a gay spouse or choose to use the Massachusetts definition of a spouse and extend benefits to a gay spouse. DOMA only states how the federal government defines a spouse; it does not trump state law in that it allows states to define a spouse as they wish. Therefore, employers in Massachusetts can say they are either using the Massachusetts definition of a spouse or the federal definition.
In Massachusetts, GLAD published a guide for same-sex couples seeking joint health insurance. The legal information in the guide, Same-Sex Spousal Health Benefits, states that employer-sponsored group health plans are governed by the Employment Retirement Income Security Act (ERISA), which standardized minimums for most pension and health plans in the private industry. ERISA recognizes two types of health insurance plans: insured, subject to state insurance regulation, and self-insured, not subject to state insurance regulation and commonly used by larger companies and unions.
Insured health insurance plans, since they are subject to state law, must cover spouses, regardless of gender. However, if a company is based outside Massachusetts and offers an insured health plan, GLAD reports it is unclear if the employer is still required to provide coverage. Self-insured plans may cover same-sex spouses, but that depends on the individual plan. Self-insured health coverage can also extend benefits to domestic partnerships or civil unions, but again, this depends on the individual plan. Married couples of any sex working at the state, county, or municipal level can receive health coverage for their spouses.
Laws in Washington, D.C. give gay spouses the same rights as all other spouses in the realm of health insurance. Long before legalizing same sex marriage, D.C. had one of the most expansive domestic partnership laws in the country. The District passed the Health Care Benefits Expansion Act of 1992, granting domestic partnerships to couples of any sex, with a wide range of guaranteed rights. Under this law, domestic partners of D.C. government employees could be added to the same health insurance policy, could receive annual paid and unpaid leave to care for their partner, and could be eligible to receive time off to care for the adoption or birth of a child. Private employers in D.C. that decide to extend health insurance to a domestic partner can choose which, if any, benefits to provide. All domestic partners are granted mutual visitation rights in hospitals and nursing homes and have the right to decide what happens to a partner’s remains after death.
Same-sex marriage in Iowa carries many of the same benefits as unions in New England and the District of Columbia. Employers who offer state-regulated insurance must extend coverage to any spouse, regardless of sex. The one difference in Iowa’s health insurance laws regarding gay couples stems from its Mini COBRA law. The Department of Labor defines the Consolidated Omnibus Budget Reconciliation Act (COBRA) as allowing workers and their families to choose to continue group health insurance coverage “for limited periods of time under certain circumstances, such as voluntary or involuntary job loss, reduction in hours worked, transition between jobs, death, divorce, and other life events.” Because COBRA is a federal law, employers governed by COBRA cannot extend these benefits to same-sex couples. Iowa’s Mini COBRA law “provides for continuation and conversion of group insurance” given that “the employer or member, a spouse, former spouse, or surviving spouse, and eligible dependents…have been continuously insured under the group policy for 3 months before termination are eligible for 9 months after the date group coverage terminates.” Iowa Attorney Laura Mueller in her online guide “Employment-Related Issues Connected to Same-Sex Marriage” advises that under Mini COBRA, smaller qualifying employers not covered by COBRA will have to extend their coverage obligations to same-sex couples.
Single health insurance policies are integral for newly married gay couples. Julie Goodridge, of Massachusetts’s Goodridge v. Department of Public Health case, explained in a 2004 interview with the San Francisco Chronicle that despite mutual powers of attorney, trusts, wills, and health care proxies, nothing “helped when [her wife] Hillary had to get into the recovery room to see me after my C-section, and it didn’t help when Hillary tried to get in to see our [daughter] Annie when she was in neonatal intensive care.” Despite acting as each other’s health care proxies, Hillary and Julie could not even visit each other in the hospital because they lacked a legally defined relationship and mutual health insurance. Sharing a health insurance plan is often far less expensive than purchasing two separate insurance policies. Additionally, if one spouse has far better coverage from their employer, both spouses can benefit once the spouse is added to that plan.
Though the specifics of health insurance laws regarding same-sex couples vary from state to state, one constant remains: inequality. Gay married couples, unlike heterosexual married couples, cannot always receive health insurance for their spouses through their employers. Although marriage comes with many legal and economic benefits, for same-sex couples, health insurance frequently does not appear to be one of them.