The Seattle Times today carried today an interesting article with horrible implications, concerning Washington State's implementation of its newly expanded domestic partnership laws, passed by referendum last month.
While discussing implementation, the Times article refers to problems arising where state and Federal laws, particularly the often-denounced DOMA, interact. It seems that under a statute acronymed ERISA, which was supposed to protect pension and health plan beneficiaries, DOMA acts to restrict or limit, or at least affect, the rights of all employers over a certain size or with certain specs to privide family and other benefits for same sex couples who are as a matter of Washington law on an equal footing with the nominally 'married'. With no direct Federal money involved at all.
Yikes! And considering the attempts of Stupak to make inroads into what coverage private insurors can offer women, Double Yikes!
Another reason to force-march toward full Marriage Equality, and to resist Stupak and the Nelson hybrid threatened in the Senate, rears its ugly if confusing head.
Conservatives have long railed about the growing intrusion of Federal regulations into state or private affairs. Mostly progressives have ignored that, because of perceived benefits. ERISA was originally a statute intended to protect pensions and insurance benefit plans which might otherwise fail for reasons of folly, stupidity or corruption of one sort or another. As I recall, it also had various anti dicrimination provisions of the equal protection of the law variety. It creates many sorts of bureaucratic snarls, because its intended protections limit the ability of employers and plan sponsors to do various things, and has separately been the source of various complaints because of the way it does things, but nothing that has moved anyone not a Republican to do anything other than complain. Its reach has not infrequently been found to exceed its original intentions. A statute which has many protective benefits but can be a nuisance at times to business people. Whatever else it is, ERISA was designed to be and is an overarching Federal regulatory statute designed to affect and restrict private plans and state laws to the contrary. ERISA itself is not the principal subject of this diary.
However, the Times is reporting that ERISA is apparently the vehicle by which the Defense of Marriage Act is being imported into what were thought to be insurance plans in WA and making it difficult if not impossible to get for WA same sex domestic partners full coverage under the new WA law requiring it, well beyond what are commonly thought to be Federal benefits within its reach. This is a puzzle to me, now a threat, given the discussions in the Stupak context about how far Stupak did or did not go in determining what coverage private insurors could offer to women who themselves paid their premiums. Not being an ERISA specialist, I would have thought that private insurors could offer what they chose to private buyers paying with their own money, subject to the usual state insurance requirements locally applicable in the place of sale and effect of the policy and anti discrimination rules. Apparently not.
What apparently is happening in WA is that the Federal policies ERISA is claimed to enforce on the state level is being held, not by WA, to include DOMA. This is in a context of insurance policies which are in all respects save ERISA private and even possibly local. No Federal money is exchanging hands, by which jurisdiction to do that arises. Only ERISA.
This is a great concern to me because WA determined that ss couples were to have all equality with M couples except the name. What this application is saying is that Federal DOMA reaches into that and limits those rights because of a statute which does not refer to or apply DOMA and does not require the Federal government to spend money or accord benefits to anyone at all in particular. If ERISA applies to employers and their insurors, neither of those can marry or be barred from doing so. If the premise is that ERISA provides protection to failing plans which might involve Federal money to rescue, or some such reasoning, then not only ERISA, but other Federal statutes touching on otherwise private matters and private companies may have the same effect. And import DOMA into circumstances and transactions other than employee benefits and recognition for Federal employees. Federal flood insurance was not intended to import DOMA to prohibit ss couples from getting flood insurance, for one example. Companies who get Federal contracts might be restricted because that is, after all Federal money, although I am not aware that has yet been asserted. But if the ERISA example holds, it might.
This has two horrible prongs. The first, of course, is that if the statute is held to import DOMA, then every program covered by ERISA is also covered by DOMA, with or without the use of Federal funds directly applied to whatever the policy is and whether or not the Federal government is in any way involved. That is, you do not have to be a Federal employee or a Federal agency to be covered by DOMA, only someone covered by a Federal regulatory statute. Any Federal regulatory statute. If any part of this is correct, then it is essential to eliminate DOMA, flat out and now, because it has a weed's tendrils to expand to places not even considered at the time regulations or laws were enacted. And full marriage, one institution by one name for all, becomes more nearly essential than previously. (My probably unfounded hope here being that if there is only one term, marriage, for all unions, then it is unlikely that DOMA could reach in and behind that category and sort that category into the ok and the not) Yes, that would create a more interesting SCOTUS case, but I have always had a practial approach to things which some here disagree with, and the amount of agony that would cause to the innocent horrifies me. Although it does not horrify either DOMA or Stupak supporters.
The second concern is Stupak. Unlike Hyde, which forbids federal money to be used 'for' abortions, the literal procedures, Stupak reaches into the interstices of privately offered insurance policies to enforce its will and prohibits a class of policies from including it in the policy. This site has already discussed at great and often pyrotechnic length how this will cause insurors acting in what they consider their economic best interests, to offer only single Stupak compliant plans because there is not an economic benefit big enough for them to offer two parallel plans. When Stupak talks to the terms of policies, to me that means ERISA will be singing and calling 'come here, honey.' Once Stupak or something like it is embedded in Federal insurance law, ERISA will pick it up and will take it to places, as evidenced by the current dp issue in WA, where no Federal funds ever went. I would like to be able to say that this is not what the sponsors intended, but like all other ERISA matters, the intent of the original text becomes irrelevant in part, and certainly the intent of the sponsors is for Stupak to go every last place they can embed it.
I am hopeful that more informed ERISA knowledgeable posters will tell me at great length and in excoriating RANTY terms that I am wrong (and a hysterical fool and and idiot and....) but the issue needs to be considered by inquiring KOS minds and dealt with because it is a way to undo progressive action by what I at least consider to be stealth, so I offer it here for consideration and discussion. Because it showed up in the quiet bureaucractic place that is WA dp insurance law, which means it can show up everywhere else as well. The Seattle Times, which has no imagination whatsoever, has made that clear to me. May Kossacks be able to make the actual situation clearer to everyone. Go for it.
UPDATE: McGrin has another ERISA post today worth a look. The title refers to Rep. Shadegg and an amendment to ERISA. That one also looks relevant here as it discusses ERISA limitations on remedies for an employer or insuror failing to cover what it should.