Last Friday, the Supreme Court issued its historic decision in Obergefell v. Hodges, wherein the Court held that the Fourteenth Amendment requires States to issue marriage licenses to same-sex couples and to recognize marriages between two people of the same sex performed out-of-State. This post addresses the effect that Obergefell will have on Longshore and Harbor Workers’ Compensation Act and Defense Base Act death benefits claims.
Death Benefits Under the Acts:
First, the statutes. Section 9 of the Longshore Act–which also applies to Defense Base Act claims–provides that death benefits shall be paid following a covered employee’s work-related death. See 33 U.S.C. 909. Benefits are paid to particular classes of beneficiaries. Among those beneficiaries are “widows” and “widowers.” Section 2 of the Longshore Act–again, applicable to Defense Base Act claims–defines the terms “widow or widower.” The terms include “only the decedent’s wife or husband living with or dependent for support upon him or her at the time of his or her death; or living apart for justifiable cause or by reason of his or her desertion at such time.” See 33 U.S.C. 902(16) (emphasis added).
Division of Longshore and Harbor Workers Compensation Policy:
Death benefits are available to the widow or widower of a covered Longshore or Defense Base Act employee, no matter whether the surviving spouse is of the same sex as the decedent. In fact, this is nothing new.
The United States Department of Labor’s Division of Longshore and Harbor Workers Compensation (DLHWC) has taken the position that lawfully married individuals qualify for death benefits even if the spouses shared the same sex. This has been the DLHWC’s official policy since June 18, 2014, when it issued LHWCA Bulletin No. 14-04.
Bulletin No. 14-04 was all about the last same-sex decision from the Supreme Court, United States v. Windsor. In Windsor, the Supreme Court held unconstitutional section 3 of the Defense Against Marriage Act (DOMA) which had defined the term “marriage” as a legal union between one man and one woman as husband of wife. Further, under DOMA, a “spouse” meant only a person of the opposite sex who is a husband or wife.
After Windsor, the winds of change began to blow through the executive branch, including the Department of Labor. The DLHWC’s position as of June 18, 2014, was that the terms “widow,” “widower,” “husband,” and “wife” are gender neutral terms that apply to “any individuals who were, at the time of the employee’s death, lawfully married under any state law.” But, the terms did not include individuals in a formal relationship recognized by a state which was not marriage. In other words, members of a domestic partnership or civil union could not be identified as widows, widowers, husbands, or wives under the Longshore Act.
Accordingly, after Windsor, the DLHWC developed the following test for same-sex surviving spouses claiming entitlement to death benefits:
If an individual seeks compensation as a widow, widower, or surviving husband or wife of a deceased employee under the LHWCA or its extensions, those terms will be read to include an individual who was, at the time of the employee’s death, lawfully married to that employee under any state law. This includes married individuals of the same sex who were legally married in a state that recognizes such marriages, even if the state in which the individual or deceased employee was domiciled at the time of the employee’s death does not recognize such marriages.
The Effect of Obergefell:
So what has changed after Obergefell? If anything, it should be easier for all parties to a Longshore or Defense Base Act claim to determine whether a same-sex surviving spouse is entitled to spousal benefits following the death of a covered employee. There stills needs to have been a lawful marriage prior to death; non-married domestic partners would not be covered as widows, widowers, husbands or wives any more than co-habitating but unmarried partners of opposite sex. But if a lawful marriage existed at the time of death, then more likely than not, the surviving spouse will qualify for death benefits.
I say “more likely than not” because marriage, in and of itself, is not the sole qualifying criteria for surviving spouse status. As required by Section 2 of the Longshore Act, courts analyzing a spouse’s entitlement to benefit have required the existence of a conjugal nexus between the surviving spouse and the decedent. See, e.g., Johnston v. Hayward Baker, BRB No. 14-0032 (2014); Omar v. Al Masar Transp. Co., BRB No. 11-0809, 2012 WL 2520756 (2012). In disputed cases, focus is trained on the claimant’s intention to sever the conjugal nexus or financial dependency; and, if the claimant and the decedent lived separate and apart, courts review the reason why the physical separation occurred. See, e.g., Thompson v. Lawson, 347 U.S. 334 (1954); Leete v. Director, OWCP, 790 F.2d 418 (1986). If there was a “justifiable cause,” such as domestic or substance abuse, or severe mental illness, then the lack of a conjugal nexus could be overlooked. See New Valley Corp. v. Gilliam, 192 F.3d 150 (1999).
On a final note, I previously wrote about the Windsor decision. Frankly, not much has changed with the Court’s announcement of the Obergefell decision. Why not? Because agencies in the executive branch have recognized same-sex marriages when the marriage was legal; and now that such marriages shall be legal throughout the land, the same policy should apply on a larger scale. For Longshore and Defense Base Act benefits, the policy is that same-sex spouses may qualify for surviving spouse benefits provided that all other “widow or widower” requirements are satisfied.
Excellent photo courtesy of Flickr user Mark Fischer.
