Post - DOMA: Should Churches Pray For ERISA?
Tom Breitenbach

Before you question whether there are far-greater concerns worthy of prayer (and I likely agree), let me explain.... Although many retirement, health, disability and life insurance plans must be designed and administered to comply with the complex regulatory requirements of ERISA, most governmental and church plans enjoy an exemption from ERISA due to their carve-out from the coverage rules in ERISA Section 4(b). However, a distinct advantage of being subject to ERISA includes the preemption clause in Section 514, overriding application of state law. ERISA plans may claim preemption from state laws that may otherwise declare it unlawful to discriminate based on sexual orientation. There is currently no federal statute prohibiting private sector discrimination in the same manner as federal laws protect against discrimination based on race, gender, national origin, age, religion, pregnancy status and disability. Therefore, federal law currently does not require a plan to offer benefits to same-sex spouses to the same extent a plan may offer for different-sex spouses.

Because marriage is now recognized as including same-sex spouses for federal law purposes, it is important for every plan to review and perhaps revise benefit plan language to clearly define “spouse” to be sure that the plan properly covers (or excludes) those spouses as the employer intends to cover. However, any church plan exempt from ERISA should examine applicable state law to be sure that the plan’s definition of “spouse” does not violate state law, as several states bar discrimination in compensation practices and privileges of employment based on an individual’s sexual orientation. Some of these state laws apply only to public employment (and therefore concern only governmental plans) or may provide a church-exception, while some states apply no exceptions. This is one of the few instances where a church may actually pray for ERISA (and federal law) to apply. While I usually don’t think of ERISA as a worthy subject of prayer, it probably is pointless anyway if one believes that federal law will soon protect against discrimination for sexual orientation in the same manner as it does for race, age, etc.



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