(San Francisco, CA, September 23, 2011)—The National Center for Lesbian Rights filed a brief in federal district court in Pennsylvania yesterday arguing that private employers cannot hide behind the federal Defense of Marriage Act (DOMA) to justify discriminating against same-sex spouses in private benefits plans.

NCLR is representing Jennifer Tobits, the widow of Sarah “Ellyn” Farley, whose parents have challenged the couple’s marriage and now seek death benefits provided by Ellyn’s employer, the law firm Cozen O’Connor P.C. Cozen’s arguments in the case jeopardize the policies of countless employers who currently provide equal benefits to same-sex spouses, including many of the nation’s Fortune 500 corporations.

Under Cozen’s retirement plan, Jennifer is entitled to Ellyn’s death benefits as her surviving spouse. Ellyn’s parents have argued that the couple’s four-year marriage is invalid because of DOMA and that Cozen should pay the benefits to them. Rather than pay the benefits to Jennifer, in January 2011, Cozen filed an action in the federal district court for the Eastern District of Pennsylvania to determine whether Jennifer or Ellyn’s parents should receive the benefits.

In a motion filed earlier this month, Cozen claimed that although its plan does not state that it excludes same-sex spouses, DOMA prevents the firm from recognizing Ellyn’s marriage and treating Jennifer as a surviving spouse. Jennifer’s response, filed yesterday, explains that DOMA does not prevent private employers from respecting the marriages of same-sex couples and providing equal benefits.

“Cozen O’Connor cannot hide behind DOMA to justify its discrimination. DOMA does not require private employers to discriminate when they set the terms of their own benefits,” said NCLR Legal Director Shannon Minter. “Federal law requires employers to give certain protections to different-sex spouses, but it doesn’t prohibit employers from offering those protections to same-sex spouses as well. A marriage is a marriage, and Cozen O’Connor can and should respect the spouses of all employees equally.”

Cozen never gave any indication to its employees that it planned to discriminate against their same-sex spouses. The firm has several offices in states where same-sex couples can legally marry and has diversity and non-discrimination policies that include sexual orientation.

“Federal law requires employers to be very clear with employees about eligibility requirements for benefits,” said Teresa Renaker, a national expert on employee benefits law, who represents Tobits along with NCLR and Jerner & Palmer, P.C. “If Cozen O’Connor insists on discriminating against same-sex spouses, the firm needed to make this clear to its employees, instead of waiting for disaster to strike as it did here.”

NCLR and co-counsel Benjamin L. Jerner, Tiffany Palmer and Rebecca Levin of Jerner & Palmer, P.C., and Teresa Renaker and Julie Wilensky of Lewis, Feinberg, Lee, Renaker & Jackson, P.C. are defending Ms. Tobits’s right to receive death benefits as Ms. Farley’s spouse.

read the brief

The National Center for Lesbian Rights is a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education.