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TX. Judge Halts Same-Sex Federal Family and Medical Leave

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By Casey C. Sullivan, Esq. on March 31, 2015 3:50 PM

A federal judge in Texas has put a stop to the Obama administration's plans to expand coverage of Family and Medical Leave Act protections to married same-sex couples, at least temporarily. Judge Reed O'Connor, in the District Court for the Northern District of Texas, ordered the government to stay its FMLA final rule after Texas brought suit.

The stay puts a halt to an expansion which would have seen leave protections extended to all married spouses, regardless of state. The FMLA allows covered workers to take to take unpaid leave in the case of serious health conditions, to care for a spouse or child, or for the birth or adoption of a new child.

The DOL's FMLA Rule

When the Supreme Court struck down the Defense of Marriage Act in 2013, in United States v. Windsor, it ruled that the federal government must treat state sanctioned same-sex marriages equal to opposite-sex marriages.

To implement the decision, the Department of Labor began drafting new rules which would expand protections then only afforded to straight married couples to all married couples. Its expansion of unpaid leave protections to same-sex spouses was set to begin last Friday. Under the DOL's new rules, all qualifying employers, including state employers, would be required to provide leave to all spouses, regardless of gender.

Federal Law Can't Override State Law, Can it?

That didn't sit right with Texas, who, along with Arkansas, Louisiana and Nebraska, brought suit, accusing the federal government of attempting to override state law. The four states currently have laws on the books banning same-sex marriage -- sort of.

Texas, Arkansas and Nebraska's marriage bans have been overturned in court, though the decisions have been stayed pending appeal. In the meantime, the states argue that the DOL rule would force them to recognize marriages state law prohibits them from acknowledging.

Which Way Windsor?

In a bit of a twist, Judge O'Connor ruled that the states were likely to prevail, given the Supreme Court's holding in Windsor. That case was also central to decisions finding the four states' marriage bans to be unconstitutional.

In Windsor, the federal government's refusal to provide equal benefits to same-sex married couples was found to be an unconstitutional deprivation of equal liberty. Under the DOL's reasoning, this requires it to extend FMLA protections to all married couples.

However, Justice Kennedy's opinion in Windsor emphasized the role states play in defining marriage laws. It is this language which O'Connor focused on when granting his stay, writing that under Windsor Congress "does not have unlimited power to impose its definition of marriage on states."

The Obama administration is reviewing the order and is likely to appeal the stay.

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