Did the U.S. Department of Labor's 2013 Technical Release force Virginia public sector health plans to cover same-sex spouses?

Plain-English summary

This opinion is a snapshot of a transitional legal moment. The U.S. Supreme Court had decided United States v. Windsor on June 26, 2013, striking down Section 3 of the federal Defense of Marriage Act. Section 3 had defined "marriage" for federal-law purposes as a union between one man and one woman. After Windsor, the federal government had to recognize state-law same-sex marriages for federal-law purposes.

On September 18, 2013, the U.S. Department of Labor issued Technical Release 2013-04, telling employee-benefit plan administrators that "spouse" in their plans should include same-sex spouses if the marriage took place in a jurisdiction that recognized same-sex marriage, regardless of where the couple lived or worked. The Technical Release applied to ERISA plans and, through the Public Health Service Act, to public-sector health plans.

Senator John Cosgrove asked the AG whether the Technical Release required Virginia public-sector health plans to extend benefits to an employee's same-sex spouse.

The AG declined to render a formal opinion because two cases pending in Virginia federal court (Bostic v. Rainey and Harris v. Rainey) were challenging Virginia's same-sex marriage ban. The Office's longstanding policy was to refrain from opining on matters in active litigation. But the AG offered legal commentary anyway, given the urgency for public entities making benefit decisions.

The commentary, as of January 2014:

• Windsor struck down Section 3 of DOMA (the federal definition) but did not strike Section 2 (28 U.S.C. § 1738C), which provides that no state is required to give effect to a same-sex marriage performed in another state.
• Virginia's Constitution, Article I, § 15-A, limited recognition of "marriage" to unions between one man and one woman.
• The DOL Technical Release was inconsistent with Section 2 of DOMA insofar as it required Virginia public plans to recognize out-of-state same-sex marriages.
• Conclusion: subject to the litigation outcome, the Technical Release should not be considered legally binding to the extent it conflicted with Section 2 of DOMA and Article I, § 15-A.

Currency note

This opinion was issued in January 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The legal landscape has changed dramatically since this opinion:

• On February 13, 2014 (just over a month after this opinion), the Eastern District of Virginia in Bostic v. Rainey struck down Virginia's same-sex marriage ban as unconstitutional. The Fourth Circuit affirmed in July 2014.
• On October 6, 2014, the U.S. Supreme Court declined to review the Fourth Circuit decision, leaving same-sex marriages legal in Virginia.
• On June 26, 2015, the U.S. Supreme Court in Obergefell v. Hodges held that same-sex couples have a constitutional right to marry in every state.
• After Obergefell, Virginia Constitution art. I, § 15-A was effectively unenforceable; same-sex marriages were entitled to full recognition for all purposes, including public-sector health benefits.

The Technical Release's framework (recognition based on the place of celebration of the marriage) is now overtaken; Virginia recognizes same-sex marriages directly. This opinion's conclusion is therefore historical only. Anyone analyzing employee-benefit eligibility for same-sex spouses in Virginia today should rely on Obergefell and current Virginia law, not this 2014 opinion.

Common questions

Why did the AG decline to issue a full opinion?
Longstanding office policy is to refrain from opining on matters in active litigation, unless requested by the court. With Bostic and Harris pending, the AG declined formal opinion but provided commentary to help public entities navigate the immediate uncertainty.

What was the difference between Sections 2 and 3 of DOMA?
Section 2 was an interstate-recognition provision: no state had to recognize another state's same-sex marriage. Section 3 was a federal-law definition. Windsor struck Section 3 only. Section 2 remained valid law until Obergefell effectively made it irrelevant.

Was Virginia's Constitution art. I, § 15-A still in force after this opinion?
On paper, yes, until Bostic (February 2014, affirmed July 2014). The Fourth Circuit's affirmance and the Supreme Court's denial of certiorari rendered the provision unconstitutional. Obergefell (June 2015) made it definitively dead letter.

Does this opinion still mean anything today?
For prospective application, no. Obergefell and Bostic override it. As a historical record of how Virginia officials navigated the Windsor-to-Obergefell transition, it is informative.

What about benefits already provided based on the DOL Technical Release before this opinion?
Public plans that extended benefits during the transitional period likely had defensible justifications (federal guidance, fiduciary duty considerations, evolving constitutional law). Public plans that did not extend benefits are now subject to the post-Obergefell legal regime.

What if a Virginia public employee had married in another state before this opinion?
At the time of this opinion, the AG's view was that Virginia public plans were not bound to recognize the marriage for benefits purposes. After Bostic (mid-2014) and Obergefell (mid-2015), the answer flipped: such marriages are recognized for all purposes including public benefits.

What is the Public Health Service Act?
42 U.S.C. § 201 et seq. PHSA contains provisions that, post-Affordable Care Act, extend certain ERISA-like requirements to public-sector group health plans, which is the mechanism through which the DOL Technical Release reached Virginia public plans.

Why did the AG offer commentary despite declining to issue a formal opinion?
The need for public entities to make benefit decisions in the immediate term. Formal opinion or not, plan administrators had to decide what to do. The AG's commentary was an effort to provide guidance without violating the no-litigation-comment policy.

Background and statutory framework

• United States v. Windsor (2013): struck down Section 3 of DOMA; federal government must recognize state-law same-sex marriages for federal-law purposes.
• 28 U.S.C. § 1738C (DOMA Section 2): provided that no state had to give effect to another state's same-sex marriage. (Remained valid until effectively overridden by Obergefell.)
• Va. Const. art. I, § 15-A: limited Virginia's recognition of "marriage" to opposite-sex unions. (Effectively unenforceable after Bostic and Obergefell.)
• DOL Technical Release 2013-04 (Sept. 18, 2013): ERISA and PHSA guidance requiring recognition of same-sex spouses based on place-of-celebration rule.
• Public Health Service Act: 42 U.S.C. § 201 et seq.; mechanism for federal regulation of public-sector group health plans.

The interpretive moves (as of January 2014):

• Windsor did not invalidate Section 2 of DOMA.
• Section 2 permitted Virginia to refuse recognition of out-of-state same-sex marriages.
• The DOL Technical Release conflicted with that authority.
• Therefore the Technical Release was not legally binding on Virginia public plans to the extent of the conflict.

Citations

• United States v. Windsor, 570 U.S. 744, 133 S. Ct. 2675 (2013)
• Bostic v. Rainey, No. 2:13-cv-00395 (E.D. Va.) (later decided in plaintiffs' favor; Fourth Circuit aff'd; Supreme Court cert. denied)
• Harris v. Rainey, No. 5:13-cv-00077 (W.D. Va.) (companion case)
• 28 U.S.C. § 1738C
• Public Health Service Act, 42 U.S.C. § 201 et seq.
• Va. Const. art. I, § 15-A
• DOL Technical Release 2013-04 (Sept. 18, 2013)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/13-102_Cosgrove.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

January 10, 2014

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

The Honorable John A. Cosgrove
Member, Senate of Virginia
Post Office Box 1548
Chesapeake, Virginia 23328

Dear Senator Cosgrove:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire whether a document produced by the United States Department of Labor, Technical Release 2013-04, requires public sector health plan sponsors in Virginia to offer benefits to an employee's "same-sex spouse," where the employee and spouse entered into a marriage in a jurisdiction that recognizes "same-sex marriage;" and, if so, when must such benefits be made available.

Response

Because there is pending litigation that touches on the issue you present,[1] the Office cannot provide an opinion on this matter.[2] Nonetheless, in light of the need of public entities to make benefit decisions, I offer legal commentary that may prove helpful to you pending the outcome of the current litigation.

Background

You indicate that on September 18, 2013, the United States Department of Labor issued Technical Release 2013-04 entitled, "Guide to Employee Benefits Plans on the Definition of 'Spouse' and 'Marriage' under ERISA and the Supreme Court's decision in United States v. Windsor" ("Technical Release"). It is applicable not only to ERISA plans, but also to public sector health plans through the Public Health Service Act ("PHSA").[3] The Technical Release states that plans subject to PHSA should use a definition of spouse that includes "same-sex spouses" if the marriage took place in a jurisdiction that recognizes "same-sex marriage." It also purports to address issues raised by the recent Supreme Court finding that a section of the federal Defense of Marriage Act[4] ("DOMA") is unconstitutional.

Applicable Law and Discussion

On June 26, 2013, the Supreme Court of the United States ruled in United States v. Windsor,[5] that Section 3 of DOMA was unconstitutional. That provision defined marriage to mean a legal union between one man and one woman as a comprehensive definition for federal statutes and regulations. Although the Court struck down Section 3 of DOMA, it specifically did not limit a state's authority to define marriage to prohibit "same-sex marriage" or dictate how state benefits could be paid.[6] In fact, Section 2 of DOMA remains valid law, and it provides that a state is not required to recognize a "same-sex marriage" performed in another state.[7] Accordingly, the Commonwealth of Virginia's constitutional provision limiting recognition of "marriage" to unions between one man and one woman[8] remains in force under current law. I therefore conclude that the Technical Release is not consistent with the provisions of Section 2 of DOMA.

Conclusion

Accordingly, subject to the outcome of litigation that may, or may not, change the status of current law, it is my conclusion that the Technical Release should not be considered as legally binding to the extent that it conflicts with Section 2 of DOMA and Article I, § 15-A of the Constitution of Virginia.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General

[1] There now are two pending cases in Virginia that challenge the existing ban on "same-sex marriage" in the Commonwealth; the ability to access benefits clearly is implicated within the issues of this litigation. See Bostic v. Rainey, No. 2:13-cv-00395 (E.D. Va.) and Harris v. Rainey, No. 5:13-cv-00077 (W.D. Va.).

[2] It is the longstanding policy of this Office to refrain from expressing an opinion about a matter currently in litigation, unless requested by the court before which the issue is pending. See, e.g., 1977-78 Op. Va. Att'y Gen. 31.

[3] 42 U.S.C. § 201, et seq.

[4] Defense of Marriage Act, 104 Pub. L. No. 199, 110 Stat. 2419 (codified as amended in scattered sections of 28 U.S.C.).

[5] 570 U.S. ___, 133 S. Ct. 2675 (2013).

[6] Id., 133 S. Ct. at 2682.

[7] See 28 U.S.C. § 1738C (providing that "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").

[8] Va. Const. art. I, § 15-A.