Labor Dept., unions go to bat in court for same-sex couples

WICHITA FALLS, Texas (PAI) – On the eve of an historic U.S. Supreme Court session on legalizing same-sex marriage nationwide, the Labor Department  is going to bat in a federal court deep in red-state Texas, arguing for extending the Family and Medical Leave Act to same-sex couples.

At the Apr. 10 hearing in Wichita Falls, the states of Texas, Nebraska, Arkansas, and Louisiana will argue that judges should keep in place U.S. District Judge Reed O’Connor’s Mar. 26 injunction against Labor Department rules extending the FMLA to same-sex couples. Had O’Connor not stepped in, the rules would have taken effect the next day, nationwide.

Meanwhile, the U.S. Supreme Court session will occur on Apr. 28, because federal appeals court judges in the Sixth Circuit, which covers Kentucky, Michigan, Ohio and Tennessee disagreed with other appeals courts on the issue. The Sixth upheld state bans on same-sex marriages. Before the High Court, unions are siding with the same-sex couples.

There, they argue that marriage discrimination leads to other discrimination – in jobs, pay, workplace assignments, Social Security benefits, disability benefits and more.

In the Texas case, the Family and Medical Leave Act, enacted in 1993, lets workers in firms with at least 50 employees to take up to 12 weeks of unpaid leave to care for themselves, a spouse or other family member, a baby or toddler or an aging parent.

The Labor Department’s Wage and Hour Division extended “spouse” to same-sex couples. And to make sure the rules took effect nationwide, DOL said that whether a partner is a spouse under FMLA depended on where they were married, not where they live now. DOL estimated, in court papers, that some 8,200 same-sex couples would be able to seek FMLA benefits nationwide in the year starting this past Mar. 27.

“A place of celebration rule allows all legally married couples, whether opposite-sex or same-sex, or married under common law, to have consistent federal family leave rights regardless of where they live,” DOL said when it issued the planned final rule.

“The final rule’s definition of spouse expressly includes individuals in lawfully recognized same-sex and common law marriages and marriages that were validly entered into outside of the United States if they could have been entered into in at least one state,” it added.

Between judicial rulings and state laws, some 36 states, plus Washington, D.C., now recognize same-sex marriages. So do many foreign nations, including unexpected ones such as Spain. But the federal appeals court in Cincinnati, in the case pending at the Supreme Court, upheld state same-sex marriage bans. So did O’Connor in Texas.

In his ruling, which DOL wants to overturn, O’Connor said the federal government’s FMLA rule forces Texas and the other three states to break their own laws, which ban same-sex marriage, and it can’t do that.

The judge explained that while the U.S. Supreme Court threw out the federal ban on same-sex marriage last year, it did not throw out another provision of that law – the Defense of Marriage Act – to let states keep their own same-sex marriage bans.

Section 3 of DOMA was the federal ban, O’Connor said, and the justices tossed it. Section 2 of DOMA let the states keep their bans, and the court didn’t rule on that, he added.

That section says “No state, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other state, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state, territory, possession, or tribe, or a right or claim arising from such relationship.”

In the U.S. Supreme Court case, the AFL-CIO, the National Education Association, and most of its state affiliates, the Service Employees and Change To Win filed a joint brief supporting the same-sex couples and their rights.

“Protecting workers’ economic rights-including those of workers who are lesbian, gay, bisexual, and transgender (LGBT) — is an important part of our collective mission,” the unions told the justices in their friend-of-the-court brief. “State laws that deny the right to marry to same-sex couples, by intention and design, ensure those couples earn less money, pay higher taxes on their wages and benefits, and have available to them fewer valuable benefits than their married counterparts.”

The same-sex marriage bans “impermissibly relegate an entire class of working families to a lower stratum of economic security by irrationally depriving LGBT workers of employment benefits extended to their coworkers,” the unions said. And teachers “see firsthand” that the same-sex marriage bans “also inflict various emotional and psychological harms on children from LGBT families and on children who are themselves LGBT. These laws therefore deprive LGBT workers and their families of equal protection of the law.

“For these reasons, among others,” the unions said the justices must rule for the same-sex couples and conclude the 14th Amendment” to the U.S. Constitution ” requires states to license marriages for same-sex couples and to recognize lawful marriages of same-sex couples performed out-of-state.”

Pride At Work is an officially recognized constituency group of the AFL-CIO. The mission of Pride At Work is to mobilize mutual support between the organized Labor Movement and the LGBT Community for social and economic justice. Lesbian, gay, bisexual and transgender labor and our allies. UNION YES!

Photo: Pride at Work, Facebook