Employers face legal questions on benefits for same-sex couples

The state Supreme Court decision on gay marriage has implications far beyond who can stand at the altar.

Many California employers will likely want to add gay married spouses to their benefit rolls. But the businesses will face complex legal questions when they try to make the move.

"Benefits – that's where this will have the biggest impact on businesses," said attorney Mark P. Grajski, a partner with Sacramento-based law firm Seyfarth Shaw LLP.

Before Thursday's ruling, California employers had to define just two legal relationships – registered domestic partners and opposite-sex married spouses.

Now a third category – same-sex married couples – will force many to examine their benefit policies. Is the language in them expansive enough to allow the business to cover gay and lesbian married couples, or does it limit them to offering benefits only to heterosexual unions?

"And then there's another business decision to make, even if you're not obligated to extend benefits to same-sex spouses," Grajski said. "Maybe you don't have to offer them, but is that a smart decision in California?"

The state's recognition of gay marriage could mean that employers who held back benefits from registered domestic partners will extend them to same-sex couples who are now married.

A New Jersey report released earlier this year found that many employers there did not offer the same benefits to state-sanctioned gay "civil union" partners as to married heterosexual spouses.

But in Massachusetts, the only state that recognizes gay marriage, the report noted that employers were far more likely to provide benefits to a gay spouse.

"It's about the power of the word 'marriage,' " said Courtney Joslin, an acting professor at the University of California, Davis, School of Law. "People understand marriage. They don't understand 'civil union' or 'domestic partner.'"

Many benefits offered by employers are governed by federal law, which, under the federal Defense of Marriage Act, defines a marriage as the union of a man and a woman. That would mean survivor benefits would not apply in a gay or lesbian marriage.

One thing is clear, Grajski says: Sorting out the complexity of the issue will take time – and money.

"It's hard to estimate how much this will cost," he said. "The legal fees to review policy language and then the cost of expanding the benefits themselves will vary by employer."

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