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View Diary: Is Boeing poised to deny Washington married couples equal benefits? (71 comments)

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  •  Ok, I'm going to take the unusual step (1+ / 0-)
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    sfbob

    of backtracking. It might actually be that ERISA's preemption is so comprehensive as to do what you say it does:

    Second, respondents emphasize that the Washington statute involves both family law and probate law, areas of traditional state regulation. There is indeed a presumption against pre-emption in areas of traditional state regulation such as family law. See, e.g., Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979). But that presumption can be overcome where, as here, Congress has made clear its desire for pre-emption. Accordingly, we have not hesitated to find state family law pre-empted when it conflicts with ERISA or relates to ERISA plans. See, e.g., Boggs v. Boggs, 520 U.S. 833 (1997) (holding that ERISA pre-empts a state community property law permitting the testamentary transfer of an interest in a spouse’s pension plan benefits).

        Finally, respondents argue that if ERISA pre-empts this statute, then it also must pre-empt the various state statutes providing that a murdering heir is not entitled to receive property as a result of the killing. See, e.g., Cal. Prob. Code Ann. §§250—259 (West 1991 and Supp. 2000); 755 Ill. Comp. Stat., ch. 755, §5/2—6 (1999). In the ERISA context, these “slayer” statutes could revoke the beneficiary status of someone who murdered a plan participant. Those statutes are not before us, so we do not decide the issue. We note, however, that the principle underlying the statutes–which have been adopted by nearly every State–is well established in the law and has a long historical pedigree predating ERISA. See, e.g., Riggs v. Palmer, 115 N. Y. 506, 22 N. E. 188 (1889). And because the statutes are more or less uniform nationwide, their interference with the aims of ERISA is at least debatable.

    So, does ERISA preempt the marriage law of state insofar as they do not have "long historical pedigree predating ERISA?" Frankly, I doubt it, and more importantly, I don't think Boeing will want to argue it, but it's at least possible that it does.

    So my fallback is this: to the extent ERISA attempts to do that, it unconstitutionally discriminates against gays and lesbians who are married (and also interferes with their fundamental right to marry).

    Ok, so I read the polls.

    by andgarden on Fri Nov 23, 2012 at 09:13:38 PM PST

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