Federal Judge Halts Labor Department Rule Expanding Same-Sex Couples' FMLA Rights

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By Lisa Nagele-Piazza

March 27 — A federal judge in Texas March 26 ordered the Labor Department to stay application of its final rule that would extend Family and Medical Leave Act protections to same-sex married couples regardless of their state of residence.

Judge Reed O'Connor of the U.S. District Court for the Northern District of Texas granted a request for a preliminary injunction brought by the Texas attorney general's office and joined by state attorneys general in Arkansas, Louisiana and Nebraska. The states argued that the Labor Department's final rule, which was scheduled to take effect March 27, unlawfully interferes with state laws that prohibit same-sex marriage and bar recognition of out-of-state same-sex marriages.

The rule would enable workers in legal same-sex marriages to take job-protected leave under the FMLA to care for a seriously ill spouse even if the state where they live doesn't recognize same-sex marriages.

O'Connor said the states showed they are substantially likely to prevail on the merits of their claims. Under both the U.S. Supreme Court's ruling in United States v. Windsor, 133 S. Ct. 2675, 118 FEP Cases 1417 (2013)—which held that the Defense of Marriage Act's exclusion of state-sanctioned, same-sex marriages from federal recognition is unconstitutional—and the federal full faith and credit law, “Congress has not delegated to the Department the power to force states defining marriages traditionally to afford benefits in accordance with the marriage laws of states defining marriage to include same-sex marriages,” O'Connor said.

“The Obama Administration’s attempt to force employers to recognize same-sex marriages would have put state agencies in the position of either violating Texas law or federal regulations,” Texas Attorney General Ken Paxton said in a March 26 statement. “We are pleased that the Department of Labor’s effort to override our laws via federal rulemaking has been halted, and we will continue to defend our sovereignty in this case,” Paxton said.

But Human Rights Campaign Legal Director Sarah Warbelow said in a press release March 26 that “[n]o legally married same-sex couple should be denied family leave simply because they happen to live in a state that fails to respect their marriage.” The Human Rights Campaign is a national lesbian, gay, bisexual and transgender civil rights organization. Because of this decision, “countless legally married same-sex couples in Texas are now unable to access … their federal FMLA benefits,” Warbelow said.

A Department of Justice spokesperson told Bloomberg BNA March 27 that the department is reviewing the opinion.

States Challenge New Definition of ‘Spouse.'

According to the court, the FMLA defines “spouse” as “a husband or wife, as the case may be.” Currently, married same-sex couples can only be considered spouses under FMLA regulations if they reside in a state that recognizes same-sex marriage.

But the Labor Department's final rule would change the definition of spouse from a “state of residence” rule to a “place of celebration” rule that looks to the law of the place where the marriage was performed. Thus, it would extend FMLA rights to same-sex married couples even if they reside in a state that doesn't recognize same-sex marriages.

Texas, joined by three additional states, sought declaratory and injunctive relief, arguing that the department's rule is contrary to the full faith and credit statute, attempts to abrogate state sovereign immunity and attempts to preempt state laws that limit recognition of out-of-state marriages to opposite-sex unions.

The department argued that “[t]he Final Rule impacts States only in their capacity as employers and merely requires them to provide unpaid FMLA leave to eligible employees based on a federal definition of spouse.”

States Likely to Succeed on Merits, Judge Says

The issue before the court was whether the Labor Department exceeded its jurisdiction by promulgating a rule that requires states to violate the federal full faith and credit statute and state laws that prohibit recognition of same-sex marriages, O'Connor said.

The full faith and credit law expressly reserves to the states the right to refuse to recognize same-sex marriages performed under the laws of other states “or a right or claim arising from such relationship,” O'Connor said. Moreover, federal agencies may not promulgate rules that conflict with federal statutes, he said.

Finding that the department's rule improperly preempts state laws that prohibit the recognition of same-sex marriages for the purpose of state benefits, O'Connor said the states are substantially likely to succeed on the merits of their claims.

“It is likely that Plaintiffs will demonstrate Congress did not intend to preempt state law with its generic rule defining ‘spouse' in the FMLA,” O'Connor said.

Supreme Court Decision Pending

The states also argued that the Windsor court disapproved of federal interference with state marriage laws.

In Windsor, the Supreme Court held that Congress’s power to define marriage is limited, O'Connor said, and it chose instead to honor a state's decision to recognize same-sex marriages. “At a minimum, it is clear from Windsor that Congress does not have unlimited power to impose its definition of marriage on the states,” he said.

But the question of whether states can ban same-sex marriage is pending before the Supreme Court in Obergefell v. Hodges, U.S., No. 14-556. The court is scheduled to hear oral argument in the case April 28.

O'Connor said the serious questions involved in the present case must be resolved by the proper authority.

“With a pending Supreme Court decision on nationwide marriage equality this summer, we are confident that justice will ultimately prevail,” Warbelow of the Human Rights Campaign said.

To contact the reporter on this story: Lisa Nagele-Piazza in Washington at lnagele@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/Tex_v_United_States_No_715cv00056O_2015_BL_84253_ND_Tex_Mar_26_20.