With gay marriage legal in Washington and DOMA repealed, all the major barriers to same-sex couples’ being treated like straight couples appear to have fallen.
But they haven’t, necessarily. Amid the jubilation, lawyers, tax experts, and even Washington’s Insurance Commissioner’s Office have been busy trying to unwrap what it all means for private companies that, under DOMA, were allowed to deny benefits like health insurance to the same-sex spouses of employees.
Here’s the legal fine print: In Washington, when employers buy health insurance from an insurance company, that insurance is subject to state regulations, meaning these plans are required to treat same-sex and opposite-sex spouses the same. Nothing changes under the DOMA ruling.
But if an employer self-insures its health plan—i.e., the employer (or a trust the employer sponsors) pays health claims—that plan is not governed by state regulation. Instead, ERISA—the federal Employee Retirement Income Security Act—becomes the guiding force. And that’s where discrimination can come in. ERISA pre-empts state law, and in the past has enabled self-insured employers not to cover same-sex spouses.
Self-insured employers can choose whether or not to extend benefits to same-sex spouses, and many—even in Washington—choose not to. According to one union lawyer speaking to Seattle Weekly anonymously because ongoing talks are confidential, she’s currently representing at least two clients sparring with “large corporate employers” that are trying to deny benefits to the spouses of gay employees. (The company that owns Seattle Weekly, Sound Publishing, self-insures its health plan, and prior to its acquisition of this paper chose not to extend health and welfare benefits to same-sex spouses. The company has since changed its policy, and now extends benefits to both heterosexual and same-sex spouses.)
Now, since DOMA has come down and federal law no longer distinguishes between opposite-sex marriages and same-sex marriages, one might assume that ERISA will no longer provide cover for companies hoping to avoid extending benefits to same-sex spouses.
That assumption, however, may be incorrect.
According to an advisory bulletin issued in March by Seattle-based law firm Davis Wright Tremaine, a refusal to cover gay spouses could simply hinge on a company’s explicit statement that only opposite-sex spouses are covered, since nothing in federal law mandates same-sex coverage. “This approach would be inherently discriminatory,” Davis Wright Tremaine says in summation. But possibly legal.
At the state Insurance Commissioner’s Office, communications manager Stephanie Marquis tells Seattle Weekly that more time is needed to provide a definitive answer about what DOMA means for health benefits. She quips, “Your question has caused a bit of research around here.”
“Insurance is going to be one of the things that will touch people most directly. . . . It’s very complicated,” says David Ward, a staff lawyer with Legal Voice. “It’s fair to say that people are going to have to check with their HR department.”
ERISA may not be the only set of federal guidelines that come into play, according to ERISA expert Chuck Thulin of Seattle’s Ekman, Bohrer & Thulin, P.S. He says other federal laws—like the federal employment-discrimination law—might be applied to compel self-insured employers to offer coverage to same-sex spouses. Thulin says this “is undoubtedly an issue that plaintiffs’ lawyers will explore.”
While the DOMA ruling may not end up being a game-changer for same-sex spouses when it comes to health-care benefits, the impact will be more substantial in other areas. Specifically, Thulin says that once the DOMA ruling takes effect, retirement benefits and pension plans will be required to treat same-sex spouses the same as opposite-sex spouses.
Again locally, such questions aren’t purely academic. As The Stranger’s Dominic Holden first reported earlier this year, during Boeing’s recent contract negotiations with the Society of Professional Engineering Employees in Aerospace, pension benefits were on the table. A union representative told The Stranger that Boeing initially balked at offering survivor pension benefits to the spouses of same-sex employees, citing federal laws that didn’t require them to. Thanks to the Supreme Court, Thulin says, “That argument is pretty much moot after the DOMA decision.” The aerospace giant later agreed to extend survivor pension benefits to same-sex spouses companywide, but not before the haggling made international headlines.
What’s the takeaway from all this? Whether or not legal wiggle room still exists in some instances to exclude same-sex spouses from self-insured health and wellness benefits—even after the DOMA ruling—those on the ground see the tide turning. Most say they hope the pressure on companies to do what’s right will be enough to persuade them.
“The Supreme Court’s action certainly sends a powerful social message that encourages equal treatment of same-sex couples,” says the ACLU of Washington’s Doug Honig. “The Court does not stand isolated from society. I think people understand that this was an historic ruling that reflected a major cultural shift toward acceptance of same-sex relationships by the American public.”
“We do think they ought to be [offering benefits to same-sex spouses],” says Ward. “The momentum is clearly going that way.”
Architect’s Cabin Cause for Complaint
Tom Kundig is one of Seattle’s most celebrated architects. The recipient of numerous national awards, the subject of books that lavishly depict his inventive, modernist houses, he is known for the way his structures “fit serenely into the landscape,” as The New York Times put it last year.
Yet a small vacation cabin he is building in the Methow Valley for his family and two others is causing a local uproar precisely because of its interaction with the landscape. The boxy, metal-roofed structure sits atop a ridge on Flagg Mountain, which rises above Mazama. The cabin—or “hut,” as it is often referred to—is positioned so far forward on the ridge that, with the help of a beam, it juts over the cliff.
“It’s hard to think of it as doing anything else but lording it over the landscape,” says Bill Pope, an owner of the Mazama Country Inn. He has helped organize a campaign, Move the Hut, that has circulated a petition asking Kundig and the co-owners of the cabin to “reconsider the location of the structure.” According to Pope, roughly 500 people have signed it so far.
Meanwhile, Flagg Mountain property owners, including the woman who sold Kundig the lot upon which he is now building, are suing the architect and the others involved with the project, who include high-end Seattle builder Jim Dow. The plaintiffs claim that Kundig and his partners are violating property covenants that call for any building to be erected with “special sensitivity” that minimizes its “visual impact” to those within its sight-line.
Pope maintains that the cabin can definitely be seen from the valley below. He says he looked up one day in October and there it was. Apart from any covenants it violates, Pope says the structure runs contrary to an “ethical” code in the valley that says “You don’t build on a ridgeline.” Despite a flurry of building by wealthy Seattleites who have picked the stunning spot in the eastern Cascades for a vacation home, that code has until now not been transgressed, he says.
Kundig has built before in the Methow Valley, designing, among other projects, a group of rental “rolling huts” that are advertised as a “modern alternative to camping.” None of those projects have sparked controversy.
Reached by phone, Kundig says he’s done nothing wrong with his newest project. He declines to talk in detail given the ongoing legal proceedings, other than to say that the cabin will live “light on the land.” He elaborates: “It’s an 800-square-foot hut that’s off the grid. It harvests the sun. It harvests water.”
Dow concedes that the cabin can be seen from the valley. But he contends that photos publicized by Move the Hut use a telephoto lens that make the structure seem bigger than it is. “We’ve had people call us and say ‘We can’t find it. Where is it?’ ”
In placing the hut, Dow says, “we had a number of constraints. One of the most crucial was that there are three pieces of property on the ridge, and the other two property owners up there were very concerned they not see our cabin.” That could only happen if the cabin was built where it is, according to Dow.
“So we tried to do some things to minimize [the impact],” he continues, adding that making the cabin small was one of them.
He also contends that others have built on ridgelines above the valley, although toward touristy Winthrop rather than in sleepy Mazama.
Attorneys for Dow, Kundig, and fellow defendant Ben Rand moved to have the lawsuit dismissed on the grounds that the plaintiffs don’t have standing. While striking two of the plaintiffs, an Okanogan County Superior Court judge ruled late last month that the suit can proceed. nina shapiro
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