The memorandum issued by President Obama yesterday extends some benefits to the same-sex partners of federal employees, including access to a government insurance program that pays for long-term conditions such as Alzheimer’s disease, and to sick leave to care for a sick same-sex partner or a non-biological child.  However, the extension did not provide eligibility for health care to same-sex partners, drawing protest from gay activists. 

Why did President Obama stop short?  The Defense of Marriage Act (DOMA), the 1996 federal law that, among other things, defines marriage as a legal union exclusively between one man and one woman.  According to President Obama’s press statement, the White House determined that DOMA prevented an extension of all benefits to same-sex partners, including health care.  In the statement, President Obama called on Congress to repeal DOMA and signaled an intend to extend all benefits to same-sex partners if and when that happens. 

President Obama’s actions will clearly impact Federal agencies and their employees, but what effect does it have on private employers?  For now, none  – the memorandum only applies to the federal government.  However, it does signal a growing trend in mandating the extension of employee benefits to same-sex partners. States that recognize same-sex marriage generally require private employers to extend benefits to same-sex spouses; other states that do not recognize same-sex marriages but do recognize same-sex partnerships (such as Oregon, Washington and California) may require private employers to extend benefits to same-sex partners under certain circumstances.  Private employers should consult legal counsel about their possible obligation to provide such benefits.