On May 7, 2013, Delaware Governor Jack Markell signed into law the Civil Marriage Equality and Religious Freedom Act of 2013 (the “Act”), which will allow same-gender couples to enter into marriages. Two years ago, Delaware passed the Civil Union and Equality Act of 2011 (“CUEA”), which became effective on January 1, 2012, giving same-sex couples who enter into a civil union the same rights, benefits, protections, responsibilities, duties and obligations as married persons under Delaware law. Same-gender couples who marry generally will not receive any more rights or benefits under Delaware law than they have in civil unions. Under the Act, however, supporters argued that the law would give same-gender couples the dignity and respect accorded to married couples and that only the status of marriage could entitle them to the protections and benefits provided to married spouses under federal law if the Defense of Marriage Act is struck down or repealed.
Pursuant to the Act, as of July 1, 2013, civil unions will no longer be performed under Delaware law, and gay and lesbian couples will be eligible to obtain marriage licenses. Existing civil unions that were solemnized in Delaware may be converted to marriages over the next year upon application by the parties to the clerk of the peace who issued the civil union license. On July 1, 2014, all remaining civil unions solemnized in Delaware will be automatically converted to marriages under Delaware law. Also, same-gender unions solemnized outside of Delaware will be treated like marriages under Delaware law. Religious societies will retain their discretion in choosing which marriages to solemnize.
Delaware is the eleventh state to legalize same-gender marriage. While we await the U.S. Supreme Court’s decision on the constitutionality of the provisions of the Defense of Marriage Act prohibiting the recognition for all purposes of federal law of same-gender marriage in states where it is legal, the definition of marriage under federal law remains limited to marriage between a man and a woman. Thus, Delaware private employers who provide health and retirement benefits, for example, that are subject to ERISA, a federal statute, may not be required to offer such benefits to the spouse of an employee in a civil union or same-gender marriage. However, it is important for such employers to consider the interpretation of their benefit plans as they relate to married couples and whether the plan documents could be construed to include or mandate coverage for same-gender married couples.
In response to CUEA, employers with employees working in Delaware should have already revised their employee handbooks, workplace policies, benefits plans, and compensation documents and practices to reflect the benefits provided to same-gender couples who have entered into civil unions. If employers have not taken such steps yet, they should do so as soon as possible to be compliant. Employers should also be sure to educate and train management on the protections afforded under the Act. If you have any questions, please contact a Richards, Layton & Finger attorney.